Opinion
Civil Action 22 Civ. 3052 (LGS) (SLC)
11-27-2023
NIDIA I. ORTIZ, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
HONORABLE LORNA G. SCHOFIELD, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Before the Court is the motion of Plaintiff Nidia I. Ortiz (“Plaintiff”) seeking an award of attorneys' fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”). (ECF No. 28 (the “Motion”)). Plaintiff requests fees in the amount of $22,197.10 for 93.1 hours of work performed by attorney Daniel Berger (“Berger”) and 0.6 hours of work performed by a paralegal. (ECF Nos. 28 at 1; 29 ¶ 6). The Commissioner of Social Security (the “Commissioner”) opposes the Motion only on the ground that “the request for compensation for 93.7 hours is excessive and unreasonable in this routine social security matter handled by experienced counsel, and should be reduced accordingly.” (ECF No. 36 at 2 (the “Opposition”)). For the reasons set forth below, I respectfully recommend that the Motion be GRANTED IN PART and DENIED IN PART, and Plaintiff be awarded fees under the EAJA in the amount of $17,875.02.
II.BACKGROUND
On March 31, 2015, Plaintiff applied for social security income (“SSI”) benefits, alleging that she was disabled as of that date. (Administrative Record (the “Record” or "R") 189-90, 200 (ECF No. 13)). After her application was denied, on July 31, 2018, Plaintiff appeared pro se for a hearing before an administrative law judge (“ALJ”). (R. 109-88). On September 6, 2018, the ALJ denied Plaintiff's application, which became the final decision of the Commissioner after the Appeals Council denied review (the “2018 Decision”)). (R. 1-25). On August 22, 2019, Plaintiff filed a pro se action in this Court seeking judicial review of the 2018 Decision (the "First Action"). (See Ortiz v. Comm'r of Soc. Sec., No. 19 Civ. 7943 (SN), ECF No. 2). On March 30, 2020, after the record had been filed but before any motion practice, Berger entered an appearance on Plaintiff's behalf in the First Action. (Ortiz v. Comm'r of Soc. Sec., No. 19 Civ. 7943 (SN), ECF Nos. 12, 17). On April 1, 2020, the parties stipulated, and the Court so-ordered, to remand Plaintiff's application for further proceedings before the agency. (Ortiz v. Comm'r of Soc. Sec., No. 19 Civ. 7943 (SN), ECF No. 19). The parties subsequently stipulated to an award of EAJA fees in the First Action in the amount of $609.60. (Ortiz v. Comm'r of Soc. Sec., No. 19 Civ. 7943 (SN), ECF No. 25).
Following remand, on June 21, 2021, Plaintiff appeared with another attorney from Berger's firm at a hearing before an ALJ, although Berger remained Plaintiff's "main representative." (R. 860-931, 942, 1009-10). In a decision dated February 8, 2022, the ALJ found that Plaintiff was not disabled from March 31, 2015 through October 24, 2019, but became disabled on October 25, 2019. (R. 828-59 (the "2022 Decision")).
On April 13, 2022, Plaintiff, represented by Berger, filed this action seeking judicial review of the 2022 Decision to the extent the ALJ found her not disabled before October 25, 2019. (ECF No. 1 ¶¶ 5-7). On August 15, 2022, the Commissioner filed the Record, which is divided into 83 sections that total 6,934 pages. (ECF No. 13 - 13-82). Following three extensions of time at Berger's request, on March 6, 2023, Plaintiff filed a motion for judgment on the pleadings supported by a memorandum of law of 35 pages. (ECF Nos. 14-19; 23-24 (the “MJP”)). In April 2023, the parties stipulated, and the Court so-ordered, to remand Plaintiff's application pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings and a new decision. (ECF Nos. 25; 26).
On June 30, 2023, Plaintiff filed the Motion, seeking an EAJA fee award of $22,197.10 (the “Requested Fees”), consisting of: (i) 2.3 hours of Berger's time in 2022 at a rate of $229.00; (ii) 90.8 hours of Berger's time in 2023 at an hourly rate of $238.00; and (iii) 0.6 hours of paralegal time at a rate of $100.00. (ECF No. 28 at 1). In support of the Motion, she submitted a two-page memorandum of law, a declaration from Berger attaching time records and a retainer agreement dated March 14, 2022, and her own declaration, in which she assigns to Berger any EAJA fee award. (ECF Nos. 28; 29; 29-1; 30). On August 25, 2023, following two extensions of time at its request, the Commissioner filed the Opposition, which principally objects to Berger's 2023 hours as excessive. (ECF No. 36 at 6-11). On September 7, 2023, Plaintiff filed a reply in which she disputes the Commissioner's characterization of the hours Berger expended in 2023 as excessive. (ECF No. 39).
In the Motion, Berger does not explain the reason for the different rates, but the Commissioner helpfully clarified in the Opposition that Berger expended 90.8 hours in 2023, while he expended 2.3 hours in 2022. (ECF No. 36 at 11; see ECF No. 28-1).
III.DISCUSSION
A. Legal Standard
The EAJA provides for the award of “reasonable” fees and expenses to the prevailing party in a civil action against the United States. 28 U.S.C. § 2412(d)(2)(A). To be eligible for a fee award, the EAJA requires: “(1) that the claimant be a ‘prevailing party'; (2) that the Government's position was not ‘substantially justified'; (3) that ‘no special circumstances make an award unjust'; and (4) pursuant to 28 U.S.C. § 2412(d)(1)(B), that any fee application be submitted to the court within 30 days of final judgment in the action and be supported by an itemized statement.” Comm'r, I.N.S. v. Jean, 496 U.S. 154, 158 (1998) (quoting EAJA); see generally Gomez-Beleno v. Holder, 644 F.3d 139, 144 (2d Cir. 2011) (applying Jean); Price v. Comm'r of Soc. Sec., No. 19 Civ. 8499 (JPO), 2022 WL 1567463, at *1 (S.D.N.Y. May 18, 2022) (quoting Jean).
It is well-settled that the “most useful starting point for determining whether a fee is reasonable is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Servedio v. Comm'r of Soc. Sec., No. 19 Civ. 9903 (RA), 2022 WL 3084335, at *1 (S.D.N.Y. Aug. 3, 2022)).“While courts in this [C]ircuit have found that twenty to forty hours represents a reasonable expenditure of time in routine social security cases,” id., courts have “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.” Price, 2022 WL 1567463, at *1. “Relevant factors to weigh include the size of the administrative record, the complexity of the factual and legal issues involved, counsel's experience, and whether counsel represented the claimant during the administrative proceedings.” Barbour v. Colvin, 993 F.Supp.2d 284, 291 (E.D.N.Y. 2014). Under the EAJA, a reasonable hourly rate “shall be based upon the prevailing market rates for the kind and quality of the services furnished,” except that attorneys' fees are capped at $125 per hour unless the Court determines that a higher fee is justified due to an increase in the cost of living or other special circumstances. 28 U.S.C. § 2412(d)(2)(A).
Internal citations and quotation marks are omitted from case citations unless otherwise indicated.
B. Application
In the Motion, Plaintiff seeks an award of attorneys' fees in the amount of $22,197.10, which represents 93.1 hours of work by Berger and 0.6 hours of work by a paralegal. (ECF Nos. 28 at 1; 28-1; 29 ¶ 6). In the Opposition, the Commissioner does not dispute that: (1) Plaintiff is a prevailing party under the EAJA; (2) the Motion is timely; and (3) the requested hourly rates are reasonable. (ECF No. 36 at 2). The Commissioner does contest the number of hours that Berger expended in 2023. (Id.). In the Commissioner's view, Berger's hours “are excessive and unreasonable given the routine nature of the arguments presented, [his] familiarity with the case since February 2020, the parties' stipulation to remand, and [his] extensive experience in social security disability law.” (Id. at 6-7). The Commissioner proposes that any award reflect a reduction in Berger's hours for 2023 from 90.8 to 60, for a total reduction of $7,330.40 resulting in an EAJA fee award of $14,866.70. (Id. at 11).
The Court agrees with the Commissioner that several factors support a reduction of hours expended in 2023.
First, the Record here was 6,934 pages, which is much lengthier than average. See Mack v. Kijakazi, No. 20 Civ. 2722 (RA) (SLC), 2023 WL 2919125, at *1 (S.D.N.Y. Apr. 12, 2023) (describing 2,733 page record as “voluminous”); Walker v. Comm'r of Soc. Sec., 20 Civ. 4426 (WFK), 2022 WL 4079576, at *2 (E.D.N.Y. Sept. 6, 2022) (describing 2,873 page record as “lengthier than average”); Rosario v. Comm'r of Soc. Sec., No. 21 Civ. 3811 (JCM), 2022 WL 17669939, at *4 (S.D.N.Y. Dec. 14, 2022) (noting that 1,232 page record was “larger than average”); Patterson v. Comm'r of Soc. Sec., No. 20 Civ. 4591 (SN), 2021 WL 4125013, at *2 (S.D.N.Y. Sep. 9, 2021) (noting that 1,200 page record “was larger than average”). While “the Commissioner acknowledges that the [Record] here was larger than typical, and likely justifies a fee exceeding the typical 20 to 40 hour range,” she contends that the Record does not justify fees “as high as [Berger] requests.” (ECF No. 36 at 7). The Commissioner notes that Berger recorded 59.4 hours over nine days reviewing the Record but failed to provide specificity as to the portions reviewed. (Id.; see ECF No. 28-1 at 3-4) The Commissioner also notes that the Record contains 1,460 pages of evidence pertaining to the period for which the ALJ found Plaintiff disabled-and thus was not contested in this action (ECF No. 36 at 7-8 (citing R. 2591-701, 3504-719, 5642-92, 5724-58, 5765-6402, 6520-934))-as well as “a significant amount of duplicative or redundant medical evidence.” (Id. at 8 (comparing R. 1030-3110 with R. 3720-5560 and 5765-6519)). Taking these points into account, the Court agrees that, while the lengthier-than-average Record justifies an adjustment above the typical 20- to 40-hour range, the number of hours Berger expended reviewing the Record over nine days was excessive and justifies a smaller upward variance than Berger requests.
Second, notwithstanding the length of the Record, Berger “does little to demonstrate the complexity of the issues involved in this case.” Barbour, 993 F.Supp.2d at 291. The issues raised in the MJP can be summarized as whether: (i) the ALJ complied with the remand order in the First Action; (ii) the ALJ properly considered Plaintiff's subjective complaints; and (iii) substantial evidence supported the ALJ's determination of Plaintiff's residual functional capacity. (ECF No. 24). “These arguments are commonly raised in social security proceedings.” Rosario, 2022 WL 17669939, at *4; see Urbancik v. Saul, No. 19 Civ. 11735 (JLC), 2020 WL 6605256, at *3 (S.D.N.Y. Nov. 12, 2020) (noting that legal challenges to, inter alia, RFC determination are “routinely presented in social security cases” and do not justify upward fee adjustment). The Court therefore finds that this factor weighs against an upward variance from the typical 20- to 40-hour range.
Third, the Court observes that “Berger['s] nearly three decades of experience in adjudicating social security claims” does not eliminate his need to familiarize himself with the agency record and other background about Plaintiff's claims. Rosario, 2022 WL 17669939, at *4; see Rivera Hernandez v. Comm'r, Soc. Sec. Admin., No. 19 Civ 4025 (PAE) (KHP), 2020 WL 2765866, at *3 (S.D.N.Y. May 28, 2020) (“[W]hile experienced counsel might be more efficient, the Court recognizes that it nevertheless takes time to comb through medical records, some of which are hard to read, and to prepare a brief.”). (See ECF No. 29 ¶ 5). Nevertheless, Berger represented Plaintiff both during the First Action and, following remand, was her “main representative” before the agency. (R. 942; see R. 832, 932, 1009, 3112, 5564, 6543). As a result, Berger had extensive familiarity with Plaintiff's case, which courts have found “does not justify excessive hours.” Banks v. Berryhill, No. 10 Civ. 6462 (KMK) (JCM), 2017 WL 3917141, at *4 (S.D.N.Y. June 30, 2017); see Diana C. v. Comm'r of Soc. Sec., No. 19 Civ. 7474 (LGS) (GRJ), 2023 WL 4365308, at *3 (S.D.N.Y. Mar. 27, 2023) (“As experienced Social Security practitioners[,] counsel could have more efficiently presented the case to the Court, particularly because counsel should have been thoroughly family with the medical record[,] having represented the plaintiff in the briefing that resulted in the [] remand and the subsequent administrative proceedings.”), adopted by, 2023 WL 4288130 (S.D.N.Y. June 30, 2023); Barbour, 993 F.Supp.2d at 291 (finding excessive hours attorney recorded for making same arguments before the agency as in federal action). Accordingly, Berger's experience combined with his representation of Plaintiff before the agency following remand of the First Action weigh against the large upward variance he requests.
Fourth, this action “was remanded [by joint stipulation] after only the opening brief was filed, while the 20-to-40-hour range common in most social security cases involves more briefing.” Urbancik, 2020 WL 6605256, at *4; see Rosario, 2022 WL 17669939, at *4 (quoting Urbancik); Greenridge v. Barnhart, No. 04 Civ. 379 (GLS) (RFT), 2005 WL 357318, at *4 (N.D.N.Y. Feb. 11, 2005) (finding variance above 40 hours not warranted where “the issues were not complex and the remand was based on a stipulation”). The Court also denied Plaintiff's request to file a 55-page brief in support of the MJP, permitting only 35 pages and reducing the effort Berger expended. (ECF Nos. 20-21).
Finally, in the conclusion of her reply, Plaintiff requests that the Court award an additional 2.6 hours for Berger's time “spent reviewing [the Commissioner's] [O]pposition to the EAJA fees and drafting this detailed response. (ECF No. 39 at 7). As discussed above, the Court has largely found those arguments unconvincing, such that these additional hours were not reasonably incurred. Further, Plaintiff has not provided contemporaneous records reflecting these additional hours. While a plaintiff may recover for the time spent litigating EAJA fees, “[t]his Circuit employs a hard-and-fast-rule with only rare exceptions under which contemporaneous time records are a pre-requisite for attorney's fees.” Rosario, 2022 WL 17669939, at *2 n.3 (cleaned up). Because Berger “merely asserts [on reply] that the additional hours were contemporaneously recorded . . . and reasonably expended to provide th[e] response,” but does not provide such records, the Court respectfully recommends that no additional EAJA fees be awarded for these hours. Patterson, 2021 WL 4125013, at *3; see Nieves v. Acting Comm'r of Soc. Sec., No. 20 Civ. 4179 (JLC), 2023 WL 154556, at *2 (S.D.N.Y. Jan. 11, 2023) (declining to award EAJA fees for hours expended on fee motion where plaintiff did not provide contemporaneous time records); Hakim v. Kijakazi, No. 21 Civ. 1460 (JLC), 2023 WL 142232, at *2 (S.D.N.Y. Jan. 10, 2023) (same); Rosario, 2022 WL 17669939, at *2 n.3 (same).
Considering each of these circumstances, the Court finds that Plaintiff has failed to demonstrate the reasonableness of all the hours that Berger expended in 2023, and that some reduction of the Requested Fees is warranted. In determining the appropriate amount of the reduction, the Court need not “scrutinize[] each action taken or the time spent on it,” Aston v. Sec'y of Health & Hum. Servs., 808 F.2d 9, 11 (2d Cir. 1986), but instead may apply a “percentage cut[] as a practical means of trimming fat from a fee application.” N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983); see Borus v. Astrue, No. 09 Civ. 4723 (PAC) (RLE), 2012 WL 4479006, at *3 (S.D.N.Y. Sept. 28, 2012) (“District courts enjoy broad discretion in ruling on fee awards under the EAJA and need not scrutinize the time spent on each itemized task for which fees are requested.”); Sava v. Comm'r of Soc. Sec., No. 06 Civ. 3386 (KMK) (PED), 2014 WL 129053, at *4 (S.D.N.Y. Jan. 10, 2014) (noting that courts have discretion to “apply a reasonable percentage reduction” to fee applications). Accordingly, the Court respectfully recommends that an award of $17,875.02 is reasonable in this action, calculated as follows: (i) 2.3 hours for Berger in 2022 at an hourly rate of $229.00 ($526.70); (ii) 72.64 hoursfor Berger in 2023 at an hourly rate of $238.00 ($17,288.32); and (iii) 0.6 hours for the paralegal at an hourly rate of $100.00 ($60.00). This award represents an approximately 20% reduction of the Requested Fees. See Confroti v. Berryhill, No. 19 Civ. 2958 (JGK), 2021 WL 796494, at *3 (S.D.N.Y. Mar. 2, 2021) (reducing fee request by 20%); Urbancik, 2020 WL 6605256, at *4 (reducing hours attorney expended on federal court briefing by 20%, resulting in a total reduction of 37%); Coughlin v. Astrue, No. 06 Civ. 497 (NAM) (GJD), 2009 WL 3165744, at *4 (N.D.N.Y. Sept. 28, 2009) (reducing fee request by 20%).
90.8 - (90.8 * 20%) = 72.64.
IV.CONCLUSION
For the reasons set forth above, I respectfully recommend that Plaintiff's Motion be GRANTED IN PART and DENIED IN PART, and Plaintiff be awarded fees under the EAJA in the amount of $17,875.02.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Schofield.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).