Opinion
1:19-cv-4393 (PGG)(KHP)
07-19-2021
JOVANNA A. HOLMAN, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY Defendant.
TO: THE HONORABLE PAUL G. GARDEPHE, United State District Judge.
REPORT AND RECOMMENDATION ON ATTORNEYS' FEE APPLICATION
KATHARINE H. PARKER, United States Magistrate Judge.
On March 8, 2021, this case was remanded to the Commissioner of Social Security, pursuant to sentence four of 42 U.S.C. § 405(g), for the purpose of conducting further administrative proceedings. (ECF Nos. 20-21.) On June 3, 2021, Plaintiff filed a motion for attorney's fees in the amount of $9,659.00 pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 (the “Motion”). (ECF No. 22.) While the Commissioner does not (1) oppose the hourly rate; (2) dispute that Plaintiff was a prevailing party; or (3) challenge the timeliness of the motion; the Commissioner finds the request for compensation for 46 hours is excessive and unreasonable. (ECF No. 25.)
The EAJA authorizes the payment of fees in an action against the United States. Eligibility for a fee award under 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.” Commissioner, I.N.S. v. Jean, 496 U.S. 154, 158 (1990) (quoting the EAJA); see generally Gomez-Beleno v. Holder, 644 F.3d 139 (2d Cir. 2011) (applying Jean). This Court finds that all four factors are met.
First, Plaintiff is a prevailing party. 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, 301-02 (1993) (“[A] party who wins a sentence-four remand order is a prevailing party.”). A plaintiff is a “prevailing party” under the EAJA when the parties in the action enter into a stipulation of remand for further administrative proceedings under sentence four of 42 U.S.C. § 405(g). See Torres v. Barnhart, No. 02-cv-9209 (AJP), 2007 WL 1810238, at *8 (S.D.N.Y. June 25, 2007) (“The parties in this case stipulated to, and the Court ‘so ordered,' a remand to the Commissioner of Social Security, pursuant to sentence four of 42 U.S.C. § 405(g), for further administrative proceedings. The Court thus agrees that [plaintiff] became the prevailing party when he succeeded in having his case remanded to the agency.”). Here, on March 8, 2021, the Court remanded this case pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings. (ECF Nos. 20-21.) No objections were raised to the order and that order has not been appealed. Thus, Plaintiff is a prevailing party.
Regarding the second factor, “[t]he Government bears the burden of showing that its position was ‘substantially justified,' and to meet that burden, it must make a ‘strong showing' that its action was ‘justified to a degree that could satisfy a reasonable person.'” Healey v. Leavitt, 485 F.3d 63, 67 (2d Cir. 2007) (quoting Pierce v. Underwood, 487 U.S. 552, 565-66 (1988)). The Government does not contest this point and concedes that Plaintiff is entitled to his reasonable attorneys' fees.
Third, this Court is unaware of any “special circumstances” that counsel against an EAJA award. And, the Court notes that Plaintiff qualifies for an award of fees because his net assets are worth less than two million dollars. See 12 CFR § 1071.103(b). Fourth, Plaintiff's Motion was timely filed within the thirty-day period required by 28 U.S.C. § 2412(d)(1)(B) and the Government does not contest this point.
Turning to the issue of a reasonable fee award, the EAJA provides that the “fees awarded . . . shall be based upon prevailing market rates for the kind and quality of the services furnished, except that . . . attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.” 28 U.S.C. § 2412(D)(2)A). Thus, cost of living increases since the $125 rate was set in 1996 can justify a fee greater than $125 per hour. Id. According to the Consumer Price Index for the New York Metropolitan Area, there has been a 59.9% increase in cost of living from March 29, 1996 to May 2019, the month when Plaintiff's counsel began working on the case. (ECF No. 23. “Affidavit of Daniel Berger”.) This increase yields a rate of approximately $209.00 per hour in today's dollars. Id.
Plaintiff seeks attorneys' fees at an hourly rate of $209.00 for his time working on this matter. Plaintiff's counsel is a highly experienced lawyer, having practiced in the area of Social Security disability law since 2003. He spent 46 hours working on this case for approximately two years, from May 2019 through May 2021, which included, combing through Plaintiff's medical records, reviewing hearing notes, ALJ Decision, drafted the complaint to file in Federal Court and identified a portion of the Certified Administrative Record was missing. (ECF No. 22.)
The administrative record in this case was 754 pages. Counsel's preparation and advocacy resulted in a remand. Plaintiff's counsel also utilized a paralegal for 0.5 hours, for which he requests a rate of $90 per hour. (ECF No. 23.) The Government does not oppose the request for reimbursement for paralegal time. Nor does it contest a rate of $209 per hour for Plaintiff's counsel, which this Court independently finds is reasonable. However, the Government contends that the hours spent by Plaintiff's counsel on this case were excessive and that no more than 40 hours of time were warranted given what it characterizes as the routine nature of the issues in the case that did not involve any significant research and does not justify an upward departure from the high end of the typical 20-40 hour guideline range for social security disability cases. Moreover, the Government points out that counsel's many years of experience and familiarity with the case from representing Plaintiff during the administrative proceedings should have resulted in fewer hours in this case.
A determination of a reasonable attorneys' fee is a matter committed to the sound discretion of the trial court. See Perdue v. Kenny A., 559 U.S. 542, 558 (2010). In making the determination, the Court evaluates whether the number of hours expended were reasonable given the issues and specific nature of the case, as well as whether the proposed rate is reasonable. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The fee applicant bears the burden of establishing the reasonableness of both by, among other things, providing an itemized statement of hours spent on case-related work. See id.; Lee v. Astrue, No. 09-cv-1575 (CSH), 2011 WL 781108, at *4 (D. Conn. Feb. 28, 2011).
A number of district courts within the Second Circuit have found that it is reasonable for a Plaintiff's attorney to spend 20-40 hours on a typical Social Security disability appeal in federal court. See, e.g., Arel v. Colvin, No. 14-cv-1008 (JGM), 2015 WL 4429263, at *2 (D. Conn. July 20, 2015); Barbour v. Colvin, 993 F.Supp.2d 284, 290 (E.D.N.Y. 2014); Grey v. Chater, No. 95-cv-8847 (JFK), 1997 WL 12806, at *1 (S.D.N.Y. Jan. 14, 1997). Courts also recognize that counsel's experience and familiarity with the record based on representation of the claimant during administrative proceedings are relevant to a determination of reasonable hours. See Barbour v. Colvin, 993 F.Supp.2d at 291. At the same time, the Court looks at each case on its own merits, including the length of the administrative record and the number of issues raised by Plaintiff.
Here, the administrative record was 754 pages and Counsel spent approximately 8.6 hours reviewing the administrative record. Notably, counsel did not have access to the transcript from the administrative hearing prior to commencing this action. It is only after the Commissioner files an answer and transcript that Plaintiff's counsel is provided with the certified administrative record with page numbers that must be cited in the briefing. The fact that counsel was familiar with the case from assisting in the administrative proceedings did not eliminate the necessity of reviewing the official record for purposes of briefing this case. Although Plaintiff's counsel is experienced, the Court recognizes that it takes time to comb through medical records, some of which are hard to read, and to prepare a brief. Indeed, courts in this District have rejected the notion that experience alone should justify a reduction of hours. See, e.g., Daily v. Comm'r of Soc. Sec., No. 18-cv-1080 (AT) (KNF), 2020 WL 1322528 (S.D.N.Y. Mar. 19, 2020) (rejecting argument that hours should be reduced based in part on argument that Plaintiff's counsel had over 30 years' experience in Social Security law when case involved an “unusually voluminous” record of more than 900 pages and a 30-page brief); Coughlin v. Astrue, No. 06-cv-0497 (NAM) (GJD), 2009 WL 3165744, at *2 (N.D.N.Y. Sept. 28, 2009) (refusing to penalize counsel for experience in fee application).
Plaintiff's counsel argues that while the Defendant opposes the number of hours in this case, the Defendant fails to point out any particularized tasks that took more time than necessary or how long the Defendant feels is reasonable to complete such tasks. (ECF No. 26.) Instead, Plaintiff argues that the Defendant is arbitrarily focused on counsel being awarded for working on the case no more than 40 hours because an “average” case takes between 20 to forty hours of time. However, a request for a blanket reduction of fees without identifying specific time expended on the case that is objectionable is inappropriate. See Ricardo Morales Santiago v. Comm'r of Soc. Sec., 19 Civ. 4001 (KPF) (KNF), 2020 WL 7335310 (S.D.N.Y. Dec. 14, 2020) (awarding same counsel who represents Plaintiff here $10,245.00 under the EAJA for a case, again rejecting Commissioner's request for a blanket reduction in fees to no more than 20-40 hours); see also Seggerman v. Colvin, No. 3:11 CV 1219 (JBA), 2014 WL 2534876 *3 (D.Conn. June 5, 2014) (rejecting same argument by Defendant urging a blanket reduction of the requested time to 20-40 hours).
Plaintiff also disagrees with the Defendant's characterization of this case as being “straightforward and simple.” (ECF No. 26.) Plaintiff's counsel had to raise four separate arguments on issues where there was no clear Second Circuit authority. Additionally, Plaintiff's counsel cited to the statement of facts, which was 26 pages alone, and briefing on the issues which required over 63 pages to oppose the Defendant's argument that this was straightforward and cookie-cutter.
In light of all of the above, and finding that the 46 hours requested is only modestly more than the 40 hours Defendant concedes is reasonable, Plaintiff's counsel has provided sufficient justification for the 46 hours expended on this case. Other courts within the Second Circuit have found that similar amounts of time spent were reasonable. See, e.g., Colegrove v. Barnhart, 435 F.Supp.2d 218, 220-221 (W.D.N.Y. 2006) (95.5 hours of time appropriate in case with administrative record over 1,100 pages); Guzman ex rel. Nelson v. Comm'r of Soc. Sec., No. 05-cv-6086 (WHP) (DFE), 2008 WL 1318920, at *2 (S.D.N.Y. Apr. 9, 2008) (70.40 hours reasonable in a case that involved one round of briefing and administrative record of only 116 pages); Hinton v. Sullivan, No. 84-cv-9276 (CES), 1991 WL 123960, at *5 & n.8 (S.D.N.Y. July 2, 1991) (158.55 hours reasonable in case involving administrative record of more than 1,000 pages).
CONCLUSION
For the reasons set forth above, I recommend that Plaintiff's application for fees and costs in the amount of $9,659.00 be GRANTED.
SO ORDERED.
NOTICE
The parties shall have fourteen days from the 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 only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)).
Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Paul G. Gardephe at the United States Courthouse, 40 Foley Square, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Gardephe. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).