Opinion
1:19-cv-07474-LGS-GRJ
03-27-2023
DIANA C., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT & RECOMMENDATION
GARY R. JONES UNITED STATES MAGISTRATE JUDGE
In November of 2015, Plaintiff Diana C.applied for Disability Insurance Benefits and Supplemental Security Income benefits under the Social Security Act. The Commissioner of Social Security denied the applications in part. Plaintiff, represented by Ny Disability, LLC, Daniel Berger, Esq., of counsel, commenced this action seeking judicial review of the Commissioner's denial of benefits under 42 U.S.C. §§ 405 (g) and 1383 (c)(3).
Plaintiff's name has been partially redacted in compliance with Federal Rule of Civil Procedure 5.2 (c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States.
On April 11, 2022, the Court entered a Report and Recommendation, recommending a remand for calculation of benefits. (Docket No. 48). The Report and Recommendation was adopted by the Honorable Lorna G. Schofield, United States District Judge, in an order on June 3, 2022. (Docket No. 49).
Presently pending is Plaintiff's motion for attorneys' fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 (d). (Docket No. 51).
I. BACKGROUND
A detailed synopsis of the administrative proceedings and procedural background is set forth in this Court's Report and Recommendation, dated April 11, 2022 (Docket No. 48).
Plaintiff commenced this action, by and through her counsel, by filing a Complaint on August 9, 2019. (Docket No. 1). The parties filed dueling motions for judgment on the pleadings. (Docket Nos. 13, 17).
On August 14, 2020, the Honorable Kevin Fox, United States Magistrate Judge, issued a Report and Recommendation, recommending a remand for further proceedings under sentence six of 42 U.S.C. § 405 (g). (Docket No. 20).
On August 31, 2020, the Honorable Lorna G. Schofield, United States District Judge, issued an order adopting Judge Fox's Report and Recommendation and directing the sentence six remand. (Docket No. 21).
On remand, the ALJ issued a decision denying Plaintiff's claim for benefits with respect to the period between July 11, 2014 (the amended alleged onset date), and July 31, 2016 (T at 1320-44).
The action then returned to federal court and Plaintiff filed a motion for judgment on the pleadings, supported by a memorandum of law, on November 10, 2021. (Docket No. 39, 40). The Commissioner interposed a motion for judgment on the pleadings, supported by a memorandum of law, on February 14, 2022. (Docket No. 43, 44).
On April 11, 2022, the Court issued a Report and Recommendation, recommending that Plaintiff's motion be granted, the Commissioner's motion be denied, and that this case be remanded for calculation of benefits. (Docket No. 48).
On June 3, 2022, Judge Schofield issued an Order adopting the Report and Recommendation and entering judgment in Plaintiff's favor. (Docket No. 49).
Plaintiff filed the instant motion for EAJA fees, with a supporting memorandum of law and affidavit, on September 1, 2022. (Docket No. 51, 52, 53). On October 19, 2022, the Commissioner filed a response opposing the fee application in part. (Docket No. 58). Plaintiff submitted a reply in further support of the EAJA application on October 27, 2022. (Docket No. 59).
II. DISCUSSION
“Under the EAJA, ‘a court shall award to a prevailing party other than the United States fees ... incurred by that party in any civil action brought by or against the United States unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.'” Padula v. Colvin, 602 Fed.Appx. 25, 26 (2d Cir. 2015) (quoting 28 U.S.C. § 2412(d)(1)(A)) (alterations omitted).
In addition, a prevailing party may “recover attorney's fees for the time spent by counsel litigating the fee itself.” Mercado v. Colvin, No. 15-CV-2283 (JCF), 2016 WL 6271139, at *2 (S.D.N.Y. Oct. 26, 2016) (citation omitted).
In the present case, Plaintiff contends that she was a prevailing party within the meaning of the EAJA, argues that the Commissioner's position was not substantially justified, and requests an attorneys' fee award of $19,298.90.
The Commissioner does not dispute that Plaintiff was a prevailing party or argue that the Commissioner's position was substantially justified. Rather, the Commissioner contests the amount of fees claimed by Plaintiff's attorneys for litigating the matter after the case was returned to this Court after remand.
“Because the parties' focus is solely on the amount of EAJA fees to award, the Court's will be as well.” Forrest v. Colvin, No. 15-CV-1573 (KPF), 2016 WL 6892784, at *2 (S.D.N.Y. Nov. 21, 2016) (internal quotation marks and citation omitted).
“The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Healey v. Leavitt, 485 F.3d 63, 69 (2d Cir. 2007)(quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)).
“[W]ithin the Second Circuit, the average time approved by courts for routine social security disability cases ranges from twenty to forty hours.” Padula, 602 Fed.Appx. at 28 (quoting Parsons v. Comm'r of Soc. Sec., No. 07-CV-1053, 2008 WL 5191725, at *1 (N.D.N.Y. Dec. 10, 2008)).
However, “the same courts ‘have also not hesitated to award attorney's fees well in excess of the routine twenty to forty hours where the facts of the specific case warrant such an award.'” Molina obo MWM v. Berryhill, No. 15-CV-8088, 2017 WL 3437572, at *2 (S.D.N.Y. Aug. 11, 2017)(quoting Stewart v. Comm'r of Soc. Sec., No. 12-CV-3121 (AJN), 2014 WL 2998530, at *3 (S.D.N.Y. July 2, 2014)).
“Factors that justify expending more than forty hours ‘include the factual, substantive, and procedural complexity of the case,' as well as the ‘size of the administrative record,' and the ‘efficacy of the attorney's efforts.'” Molina, 2017 WL 3437572, at *2 (quoting Stewart, 2014 WL 2998530, at *3).
Plaintiff's counsel requests approval for 94.1 hours which can be divided into the following categories: 4.2 hours prior to the filing of the Complaint; 24.5 hours for the District Court litigation leading to the sentence six remand; 61.5 hours for work following the sentence six remand; and 4.4 with respect to the instant EAJA motion (including 3.9 hours responding to the Commissioner's opposition thereto). Counsel requests reimbursement at an hourly rate of $209 for attorney time.
The fee request includes .5 of paralegal time, which counsel requests at an hourly rate of $100. This Court finds that this time represents administrative or clerical work, which is not compensable under the EAJA. See Finch v. Saul, No. 17-CV-892 (OTW), 2020 WL 1940308, at *6 (S.D.N.Y. Apr. 22, 2020)
The Commissioner accepts the proposed hourly rate and asserts that reimbursement for 22.6 hours of work performed prior to the sentence six remand is reasonable (the Commissioner argues for a slight reduction from the requested hours to account for non-reimbursable clerical tasks and work performed before the administrative agency).
Thus, the Commissioner's primary challenge to the fee request is that the fees are excessive for the work performed during the post-remand portion of the litigation.
Although mindful of the highly favorable overall result achieved by Plaintiff's counsel, for the following reasons the Court recommends that a reduction from 61.5 hours to 40 hours is appropriate for the work performed during the post-remand (pre-EAJA motion) portion of the case.
First, the issues presented (weighing of medical opinion evidence, Listings analysis, credibility determination) were not novel or complex. See, e.g., Rivera v. Astrue, No. 07-CV-3129 (ARR), 2009 WL 1351044, at *1 (E.D.N.Y. May 13, 2009) (“[W]hen a case does not ‘rais[e] any extraordinarily difficult or complex legal or factual issues,' courts have determined that the hours spent litigating it should not have exceeded the guideline range [of 20 to 40 hours].”). This militates against exceeding the forty-hour threshold.
Second, there is no dispute that Plaintiff's counsel are seasoned practitioners well-versed in the applicable procedural and substantive law. See Woody v. Colvin, No. 14-CV-718 SAS, 2015 WL 728179, at * 2 (S.D.N.Y. Feb. 19, 2015)(“The resulting legal issues Mr. Portnoy raised in his district court brief were neither novel nor particularly complicated, especially for an experienced attorney in the field.”). As experienced Social Security practitioners counsel could have more efficiently presented the case to the Court, particularly because counsel should have been thoroughly familiar with the medical record having represented the plaintiff in the briefing that resulted in the sentence six remand and the subsequent administrative proceedings.
Third, some of the hours expended reflect that more than one attorney was involved in the matter, resulting in duplicative efforts. See Urbancik v. Saul, No. 19-CV-11735 (JLC), 2020 WL 6605256, at *4 (S.D.N.Y. Nov. 12, 2020)(“Lastly, it was inefficient for Portnoy to spend almost 46 hours drafting and revising the summary of facts and medical evidence when McAdams could have done so more efficiently given that he represented Urbancik in the administrative proceedings.”).
For these reasons, the Court concludes that a reduction to 40 hours in the fees incurred for the post-remand, pre-EAJA motion work is warranted. See Green v. City of New York, 403 Fed.Appx. 626, 630 (2d Cir.2010)(stating that district courts are authorized “to make across-the-board percentage cuts in hours as a practical means of trimming fat from a fee application.”) (quoting In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 237 (2d Cir.1987)).
The Court further recommends a slight reduction in the fees requested for work performed prior to the filing of the case. Plaintiff requests 4.2 hours for work performed prior to the filing of the complaint. In the Court's view 4.2 hours for institution of a case, which already has been briefed and remanded by the Court, and then litigated administratively is excessive. The Court concludes that 2.2 hours is more in line for the time necessary to commence the action, which primarily consisted of preparing a short, stipulated motion to reopen the case. (Docket No. 30.) See Chursov v. Miller, No. 18-CV-2886 (PKC), 2019 WL 5092007, at *3 (S.D.N.Y. Oct. 11, 2019)(“The Court construes the language of the EAJA permitting recovery of ‘fees and other expenses ... incurred by that party in any civil action,' ... to include fees and expenses that are reasonably related to the institution of the action.”)(internal citation omitted).
III. CONCLUSION
Accordingly, for the reasons discussed above, the Court recommends that Plaintiff's motion (Docket No. 51) should be GRANTED, in part, and DENIED in part. Counsel should be awarded fees under the EAJA in the total amount of $14,755.40, representing an hourly rate of $209 for 2. 2 hours prior to the commencement of the case, 24 hours for the District Court litigation prior to the sentence six remands, 40 hours for work performed following the sentence six remand (but prior to the instant fee application), and 4.4 hours for work related to the fee application.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the District Judge. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).