Greenidge v. Barnhart

Full title: RICHARD GREENIDGE, Plaintiff, v. JO ANNE B. BARNHART, Commissioner of…

Court: United States District Court, N.D. New York

Date published: Feb 11, 2005

6:04-CV-0379 (GLS/RFT) (N.D.N.Y. Feb. 11, 2005)

Opinion

6:04-CV-0379 (GLS/RFT).

February 11, 2005

IRWIN M. PORTNOY, ESQ., Portnoy, Marcus Law Firm, Newburgh, NY, for the Plaintiff.

WILLIAM H. PEASE, ESQ., Assistant U.S. Attorney, HON. GLENN T. SUDDABY, United States Attorney, Syracuse, NY, for the Defendant.

DECISION AND ORDER

GARY SHARPE, Magistrate Judge

I. Introduction

Plaintiff Richard Greenidge (Greenidge) seeks to recover attorney's fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, based on a remand for a redetermination of Social Security benefits under Sentence Four of 42 U.S.C. § 405(g). The Commissioner of Social Security (Commissioner) opposes the application arguing that the claimed hours and requested hourly rate are excessive and unreasonable. Upon review of the submissions and applicable law, Greenidge's motion for attorney fees is GRANTED in part, for a total award of $7,407.68.

II. Background

On January 22, 2001, Greenidge filed an application for Social Security disability benefits and supplemental security income which was subsequently denied.¹ (Tr. 74, 92-94).² He appealed, and on April 23, 2002, a hearing was held before Administrative Law Judge Thomas P. Zolezzi (ALJ). On August 8, 2002, the ALJ issued a decision finding that Greenidge was disabled as of January 22, 2001, but not prior thereto. (Tr. 18-25). On August 30, Greenidge appealed the ALJ's decision as to the date of onset of his disability and the ALJ's refusal to reopen his prior applications for benefits.³ (Tr. 11); Pl.'s Br. at 2, Dkt. No. 11. The ALJ's determination of benefits became the final decision of the Commissioner after the Appeals Council denied review on February 6, 2004. (Tr. 4-7).

1 Greenidge sought disability insurance benefits and supplemental security income for his alleged disability since May 5, 1993. (Tr. 18).

2 Tr.() refers to the pages of the administrative transcript. See Dkt. No. 4.

3 In his complaint, Greenidge refers to his prior applications for benefits on April 21, 1994, March 6, 1997 and January 29, 2000 under 42 U.S.C. § 423 et seq. (Title II). See Compl. ¶¶ 4,6,10, Dkt. No. 1.

On April 5, 2004, Greenidge brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking review of the Commissioner's final determination. See Compl., Dkt. No. 1. On July 15, the Commissioner answered and filed an administrative transcript, and Greenidge then filed his brief. See Dkt. Nos. 3, 4, 11. On December 2, the parties entered into a stipulation to remand the case for a redetermination of benefits. See Dkt. No. 14. On December 3, the court entered an order and judgment reversing the ALJ's decision and remanding the case under Sentence Four of 42 U.S.C. § 405(g) pursuant to the stipulation agreement. See Dkt. Nos. 15, 16. On December 13, Greenidge applied for taxable costs in the amount of $179.93 which were subsequently awarded. See Dkt. No. 17, 22. On December 17, 2004, Greenidge also submitted a motion⁴ for attorney's fees under the EAJA in the amount of $12,981.10. See Dkt. Nos. 18-21. The Commissioner opposed Greenidge's application for attorney's fees as excessive and unreasonable. See Dkt. No. 23. On January 21, 2005, Greenidge was granted leave to submit a reply brief which was subsequently filed with the court. See Dkt. Nos. 24, 25, 26.

4 Initially, Greenidge filed an affidavit in support of a petition for attorney's fees without a return date which was subsequently remedied following notice by the clerk. See 12/17/04 Clerk's docket entry.

III. Discussion

A. Equal Access to Justice Act, 28 U.S.C. § 2412

"The EAJA contains two distinct and express statutory waivers of sovereign immunity permitting the recovery of attorneys' fees in lawsuits brought by or against the United States." Kerin v. U.S. Postal Service, 218 F.3d 185, 189 (2d Cir. 2000) (discussing the differences between 28 U.S.C. §§ 2412(b) and (d)). Ordinarily, attorneys' fees awarded under the EAJA may not exceed the statutory rate per hour, except where the Commissioner has acted in bad faith. See Wells v. Bowen, 855 F.2d 37, 46 (2d Cir. 1988). This bad faith requirement is incorporated in 28 U.S.C. § 2412(b). See, e.g., Sierra Club v. U.S. Army Corps of Eng'rs, 776 F.2d 383, 390 (2d Cir. 1985).

Under § 2412(b), the statutory language imposes "no ceiling on the hourly rate used to calculate bad faith fees, requiring only that such fees be reasonable." Kerin, 218 F.3d at 190 (quotations omitted). An award of fees under this section "requires far more egregious conduct on the government's part than is required under section 2412(d) and it exposes the government to liability for costs and fees above and beyond the limit set by section 2412(d)." Wells, 855 F.2d at 46 (citations omitted). The Second Circuit has held that "awards under the bad faith exception must be supported by clear evidence, and that the factual findings of the court below must exhibit a high degree of specificity." Kerin, 218 F.3d at 192 (citations omitted) (emphasis in original).

In contrast, 28 U.S.C. § 2412(d)(2)(A) mandates that the hourly rate for attorney's fees shall be based upon the "prevailing market rate for the kind and quality of services provided," not to exceed "$125 per hour," and further provides for adjustment of the hourly rate at the court's discretion, based on "cost of living"⁵ increases or other "special factors." See 28 U.S.C. § 2412(d)(2)(A); see also Jackson v. Heckler, 629 F. Supp. 398, 405 (S.D.N.Y. 1986). This section "is an entirely statutory basis for the award of attorneys' fees." Kerin, 218 F.3d at 189. Moreover, a prevailing party will be awarded reasonable attorney's fees under § 2412(d)(2)(A) unless the government demonstrates that its position in the litigation was "substantially justified" or that "special circumstances make an award just." 28 U.S.C. § 2412(d)(1)(A).

5 The cost of living adjustment is determined by the use of the consumer price index for the region. See, e.g., Action on Smoking and Health v. Civil Aeronautics Bd, 724 F.2d 211, 217 (D.C. Cir. 1984) (also discussing purpose for cost of living increases).

"To be considered a prevailing party, a plaintiff must have achieved a judicially-sanctioned material alteration of the legal relationship between the parties." McKay v. Barnhart, 327 F. Supp. 2d 263, 266 (S.D.N.Y. 2004) (citing Robertson v. Giuliani, 346 F.3d 75, 79 (2d Cir. 2003)). The Supreme Court has held that a remand under Sentence Four of 42 U.S.C. § 405(g) is a final judgment that qualifies a plaintiff for prevailing party status. See Shalala v. Schaefer, 509 U.S. 292, 302 (1993). "Thus, not only are §§ 2412(b) and (d) statutorily distinct, but the elements required to sustain a fee award under each subsection are different as well." Kerin, 218 F.3d at 191.

Although it appears that Greenidge is only seeking attorney's fees under 28 U.S.C. § 2412(d), he attempts to argue bad faith in his brief without any specific reference to the applicable subsection of 28 U.S.C. § 2412. See Pl.'s Br. pp. 4-6, Dkt. No. 21. Inasmuch as Greenidge purports to seek bad faith fees under 28 U.S.C. § 2412(b), this court finds no merit or supporting evidence for such an award. See id. at 6. The fact that the Commissioner filed an answer and subsequently entered into a stipulation for remand may represent unreasonable behavior to Greenidge, but it is not sufficient evidence of any bad faith.⁶ See id. at 5; see, e.g., Garcia v. Sullivan, 781 F. Supp. 969, 974 (S.D.N.Y. 1991).

6 Greenidge also submits a letter from ALJ Zolezzi stating that $250.00 per hour is a reasonable fee for an experienced attorney which can be construed as an indication that he is seeking bad faith fees under 28 U.S.C. § 2412(b). See Portnoy Aff., App. 3, Dkt. No. 20.

As the application relates to attorney's fees under § 2412(d), the Commissioner does not dispute that Greenidge is entitled to an award of the statutory rate fees. See Def.'s Br., Dkt. No. 23. Instead, she argues that Greenidge's claimed hours and hourly rate for his attorney's fees are both excessive and unreasonable. See id. at 2-4. The court addresses these issues seriatim. B. Reasonableness of the Number of Hours Claimed

"The starting point for [a] fee determination is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." DiGennaro v. Bowen, 666 F. Supp. 426, 433 (E.D.N.Y. 1987) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). "The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed." Hensley, 461 U.S. at 433. "In making this determination, the district court should exclude hours that are not `reasonably expended,' i.e., hours that are excessive, redundant or otherwise unnecessary." DiGennaro, 666 F. Supp. at 433 (quoting Hensley, 461 U.S. at 434).

As the Supreme Court stated in Hensley: "billing judgment is an important component in fee setting . . . Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority." Id. at 434 (citing Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980) (en banc) (emphasis in original)). Therefore, "where the documentation of hours is inadequate, the district court may reduce the award accordingly." Hensley, 461 U.S. at 433.

In this case, Greenidge argues that the request for 83.41⁷ billable hours for a total amount of $12,981.10 is reasonable due to the complex nature of the legal issues and the medical condition⁸ surrounding this case. See Pl.'s Br. at 8, Dkt. No. 21. In support, Greenidge proffers the two-page remand order by the Commissioner as evidence of the complexity of the issues in this case. See Pl.'s Reply Br. at 3, Dkt. No. 26. Additionally, Greenidge contends that his second cause of action regarding the ALJ's refusal to reopen his prior applications for benefits also involved complex legal issues. See id. at 4. He also argues that the Commissioner's conduct in filing an answer without sufficiently scrutinizing the record should be a basis for awarding him all of his claimed hours. See id. at 3.

7 The claimed hours of 83.41 also includes the 8.18 hours associated with the preparation of the EAJA application for attorney's fees which the court will award separately. See infra, Decisions-Order, p. 14.

8 The medical condition relates to "Reflex Sympathetic Dystrophy" (also referred to as Compartment Regional Pain Syndrome) which is "a syndrome of burning pain, hyperesthesia, swelling, hyperhidrosis, and trophic changes in the skin and bone of the affected extremity." Knapp v. Sullivan, 1989 WL 138746, at *2 (D.Or. Nov. 1, 1989)

In response, the Commissioner objects to the claimed hours (83.41) as being excessive for such a routine case. See Def.'s Br. at 4, Dkt. No. 23; Portnoy Aff., App. 6, Dkt. No. 20. The Commissioner also contends that Greenidge's claimed hours are not adequately detailed in his application for attorney's fees. See Def.'s Br. at 5, Dkt. No. 23. Specifically, the Commissioner points to billing entries wherein Greenidge has lumped separate tasks together and has cumulatively assigned a number of hours. See id. at 6-7. She also argues that the application for over forty hours to draft and revise a brief is unreasonable and warrants a significant reduction of hours. See id. at 3-4.

Having reviewed the underlying record, briefs and complaint, the court finds that Greenidge's application for his claimed hours are excessive and unreasonable for the following reasons. See Dkt. Nos. 1, 4, 11. First, the claimed hours are generally excessive for the tasks that were completed and recorded in his billing entries.⁹ See Portnoy Aff., App. 6, Dkt. No. 20. For example, Greenidge claims more than 5.90 hours in preparing a district court complaint that is only five typewritten pages with thirteen pages of attachments.¹⁰ See Compl., Dkt. No. 1. In this complaint, the first three pages are simply a reiteration of basic procedural facts in the underlying hearing while the remaining two pages are allegations of legal error and the requisite relief. See id. There is no reason why a five page complaint from an appeal of an ALJ's decision would take more than five hours to write when the issues are simply a disagreement on the date of the onset of Greenidge's disability and the ALJ's refusal to reopen his prior applications for benefits. See id. Moreover, counsel was very familiar with the underlying facts and issues in the administrative hearing since it was his firm that represented Greenidge. (Tr. 82-83).

9 Another example of the excessive billing is found in the August 24, 2004 entry where Greenidge bills 0.45 for a six line letter to the court requesting an extension of time to file his brief. See Portnoy Aff., App. 6, Dkt. No. 20. In the September 23, 2004 entry, Greenidge bills 6.00 hours for "Telephone conference with U.S. Attorney re extension of time to file Brief in support of Complaint; letter request to Court for Extension; telephoneconference [sic] with Clerk in Judge Treece's chambersre [sic] requestsscanned [sic] in docments [sic] for Appendices; revised brief; legal research." See id. Greendige also bills over forty hours for a brief. See id.

10 The attachments are the ALJ's underlying decision and the denial letter from the Appeals Council. See Compl., Dkt. No. 1.

Second, Greenidge fails to provide a separate assignment of time for each billed task and has in certain cases lumped several tasks together.¹¹ See Portnoy Aff., App. 6, Dkt. No. 20. In this regard, this court can neither assess the reasonableness of the time spent for each of these billed activities, nor can it discern the hours performed for each task. See id. Thirdly, the court notes that some of the billed activities were clerical in nature, and in one instance was not even performed by counsel.¹² See Portnoy Aff., App. 6, Dkt. No. 20. Regardless, Greenidge submits these tasks as his attorney's activities and bills them at the attorney hourly rate. See id.

11 For example in the April 2, 2004 entry, he claims 4.54 hours for the following tasks: "draft USDC complaint, Civil Cover sheet, Summons, print hard copy for mailing and print PDF file for CD ROM and mail by Airborne Express" while on the prior entry of March 9, 2004, Counsel also drafted the complaint for 1.40 hours. See Portnoy Aff., App. 6, Dkt. No. 20.

12 For example, on September 14, 2004, Greenidge bills 1.50 hours at an attorney rate for "[c]opy of Appeal Council file as per Irwin M. Portnoy" for secretarial work performed by another individual. Id.

Finally, Greenidge's claimed hours for numerous revisions and drafts of his district court brief for approximately forty hours are excessive and unreasonable.¹³ See id. Contrary to Greenidge's contentions, the facts surrounding this case do not contain any novel or complex issue that requires over forty hours of research and/or writing. The fact that Greenidge made a request for four additional pages in his brief under L.R. 7.1 (a)(1) is also not a proper indicator of the alleged complexity of this case. See Pl.'s Reply Br. at 6, Dkt. No. 26; Dkt. No. 8. Additionally, Greenidge only spent two pages in his brief arguing the complex nature of his second cause of action.¹⁴ See Pl.'s Br. at 26-28, Dkt. No. 11. Nonetheless, this case did not involve the resolution of any particularly complex factual or legal issues that were either difficult or involved matters of first impression.

13 The court is unable to discern the actual hours spent on the drafting and legal research for the brief since some of the billing time entries also include other tasks not associated with the brief. See Portnoy Aff., App. 6, September 21, 22, 23, 29, 2004 entries, Dkt. No. 20.

14 A cause of action that allegedly "took time and skill" and required extensive research. See Pl.'s Br. p. 4, Dkt. No. 26.

Simply put, the issues in the underlying case were not based upon any misunderstanding of the medical nature of Greenidge's condition since the ALJ found him disabled. (Tr. 19, 24). Rather, the error was based upon the determination of the date of onset of Greenidge's disability and the ALJ's decision not to reopen his prior applications¹⁵ for benefits without reviewing the administrative record. (Tr. 22); see also Compl., Dkt. No. 1. In light of these circumstances and the foregoing deficiencies, this court will exercise its discretion to make an independent determination regarding what is the reasonable time that should have been expended on this case. In this regard, this case does not justify more than forty hours, especially when the issues were not complex and the remand was based on a stipulation agreement between the parties.¹⁶ See Dkt. Nos. 14,15.

15 The ALJ found that there was no objective medical evidence to support an earlier determination of an onset of disability prior to January 22, 2001. (Tr. 22). However, the ALJ allegedly failed to establish or review the applicable medical records for those periods of Greenidge's prior applications. See Compl., Dkt. No. 1.

16 See, e.g., Pribek v. Sec'y of Dep't. of Health and Human Servs, 717 F. Supp. 73, 75-76 (W.D.N.Y. 1989) (granting fees under the EAJA and 42 U.S.C. § 406(b) for 40 hours instead of the requested 87 hours because "[f]orty hours more adequately reflects, in this Court's experience, a reasonable expenditure of time on a case of this sort, which is unextraordinary in all respects"); McNeill v. Sec'y of Health and Human Servs, 1989 WL 39449 (W.D.N.Y. Apr. 20, 1989) (awarding 23.2 hours, including one hour seeking fees); Cavanaugh v. Sullivan, 1989 WL 41732 (W.D.N.Y. Apr. 25, 1989) (35.75 hours); Kurowski v. Bowen, 1988 WL 125191 (W.D.N.Y. Nov. 21, 1988) (32.8 hours); Elliott v. Bowen, 1987 WL 8817 (W.D.N.Y. Apr. 2, 1987) (60 compensable hours requested; 48.7 hours deemed reasonable); Breneman v. Bowen, 1987 WL 6776 (W.D.N.Y. Jan. 29, 1987) (52.3 hours claimed; 40 hours deemed reasonable); DiGennaro v. Bowen, 666 F. Supp. 426, 433 (E.D.N.Y. 1987) (holding that 45 of the claimed 103 hours were compensable under the EAJA in a social security disability case) (citing Wohl v. Sec'y of Health Human Servs, CV 82-1312 (E.D.N.Y. Dec. 3, 1986) (unpublished opinion) (35 hours); Garitta v. Bowen, CV 82-1273 (E.D.N.Y. Oct. 8, 1986) (unpublished opinion) (33.5 hours); Ceglia v. Schweiker, 566 F. Supp.118, 125 (E.D.N.Y. 1983) (20 hours); Vega v. Schweiker, 558 F. Supp. 52, 54 (S.D.N.Y. 1983) (29.25 hours); San Filippo v. Sec'y of Health Human Servs, 564 F. Supp. 173, 177 (E.D.N.Y. 1983) (41 hours); Hardy v. Callahan, 1997 WL 470355, at *9 n. 10 (E.D.Tex. Aug. 11, 1997) (awarding EAJA fees for 46.5 hours, including 6.5 hours for fee petition noting "between thirty and forty hours" to be an "appropriate average" for "relatively non complex" social security cases)).

Accordingly, Greenidge is awarded attorney's fees for 40 hours rather than the requested 83.41 hours. Additionally, Greenidge is awarded 8.18 hours in attorney's fees associated with the drafting of the EAJA application for a total amount of 48.18 hours in attorney's fees.¹⁷ C. Calculation of Hourly Rate

17 Greenidge requested and was granted leave to file a reply brief that was not allowable for this type of motion pursuant to L.R. 7.1. See Dkt. No. 24. Moreover, the reply brief did not shed any new light on the issues before this court. See Dkt. No. 25. Therefore, the attorney's fees associated with the preparation of the reply brief should be borne by Greenidge and not the Commissioner since Greenidge made the request to file additional papers. See Dkt. No. 26.

Generally, "an award of attorney's fees . . . is limited to $125 an hour plus a cost of living adjustment." 28 U.S.C. § 2412(d)(2)(A). "The district court may then adjust the fee upward or downward, based on other considerations, such as the degree of success and the novelty and difficulty of the questions considered." DiGennaro v. Bowen, 666 F. Supp. 426, 433 (E.D.N.Y. 1987) (citing Hensley, 461 U.S. at 434).

In Williams v. Sullivan, 829 F.2d 396, 402 (3d Cir. 1987), the Third Circuit held that the applicable CPI for attorney's fees under the EAJA is calculated by "using the closest available CPI to the date on which plaintiff became the prevailing party." Id. However, in Kerin, the Second Circuit held that "the hourly rate under § 2412(d)(1)(A) should only be increased by the corresponding Consumer Price Index for each year in which the legal work was performed." 218 F.3d at 194 (emphasis added); see, e.g., McKay v. Barnhart, 327 F. Supp. 2d 263, 270 (S.D.N.Y 2004). It is well settled that a "federal district court is bound by the rule of the circuit in which it is located," and the rule of the Second Circuit on the question governs. Christ the King Regional High School v. Culvert, 644 F.Supp. 1490, 1496 (S.D.N.Y. 1986) (citations omitted).

In this case, the parties disagree as to the hourly rate to be applied. See Portnoy Aff. at 2, Dkt. No. 20; Def.'s Br. at 8, Dkt. No. 23. Specifically, their disagreement lies in the application of the Consumer Price Index (CPI) for determining the cost of living adjustment (COLA) to be added to the $125.00 rate. See id. The Commissioner contends that the hourly rate is $151.15 using the lowest CPI of 201.1 for 2004, while Greenidge argues that the rate should be $155.63 using the highest CPI of 207.3. See Portnoy Aff. at 2-3, Dkt. No. 20. Initially, Greenidge sought special factors for a further increase of this $125 statutory rate. See Pl.s Br. at 6-7, Dkt. No. 21. However, he subsequently retracted these enhancements and only seeks COLA increases. Pl.'s Reply Br. at 5, Dkt. No. 26. Nonetheless, the court finds no special factors such as his experience with dealing with social security cases as justifying an increase of the statutory fee rate other than COLA.¹⁸ See Patterson v. Apfel, 99 F. Supp. 2d 1212, 1214 (C.D. Cal. 2000).

18 It should also be noted that counsel for Greenidge is a retired ALJ from the Social Security Administration. See Pl.'s Br. p. 7, Dkt. No. 21. Notwithstanding this fact, the total amount of time spent on this case is both unreasonable and excessive.

In this regard, both parties are erroneous in their application of the CPI to the attorney's hourly fee rate. The proper CPI to apply in calculating the hourly fee rate is the annual CPI (204.8) for 2004 when all of the legal work was completed. See 28 U.S.C. § 2412(d)(2)(A); see also Kerin, 218 F.3d at 194. Accordingly, the hourly rate is $153.75.¹⁹ Multiplying the awarded hours for 2004 (48.18) by the applicable hourly rate ($153.75) yields a total of $7,407.68. Greenidge has not submitted any evidence of costs or expenses in this motion since he was previously awarded taxable costs by the Clerk of Court. See Dkt. Nos. 17, 22.

19 The hourly rate of attorney's fees was calculated by using the 2004 annual CPI for the New York Region (204.8) and subtracting it from the March 1996 CPI (166.5) when the statutory fee rate was increased by Congress from $75.00 to $125.00. See PL 104-121, (Contract with America), 1996 HR 3136. This difference (38.3) is then divided by the March 1996 CPI (166.5) resulting in a constant of (0.23) which is then multiplied by the statutory rate of $125.00 for a COLA of $28.75. The COLA figure of $28.75 is then added to the statutory rate of $125.00 for a total hourly rate of $153.75. See http://www.bls.gov/cpi/cpi1998d.htm.

Accordingly, Greenidge is granted a total of $7,407.68 in attorney's fees.

IV. Conclusion

For the reasons stated, it is hereby

ORDERED that Greenidge motion is GRANTED in part for a total EAJA award of $7,407.68 for 48.18 hours of attorney time at a rate of $153.75 per hour; and it is further,

ORDERED that the Clerk of the Court serve a copy of this Decision-Order upon the parties and close this case.