Opinion
7:20-CV-69 (HL)
05-13-2022
J.T., Plaintiff, v. Commissioner of Social Security, Defendant.
RECOMMENDATION
THOMAS Q. LANGSTAFF, UNITED STATES MAGISTRATE JUDGE
This Social Security appeal is presently before the Court on Plaintiff's Motion for Attorney Fees. (Doc. 26). The District Judge entered an order reversing the Commissioner's decision in this matter pursuant to Sentence Four of 42 U.S.C. § 405(g) and remanding it to the administrative level for further proceedings. (Doc. 24). Plaintiff seeks attorney fees pursuant to 28 U.S.C. § 2412(d), a provision of the Equal Access to Justice Act (EAJA). (Doc. 26). Plaintiff seeks attorney fees in the amount of $12,192.60, based on 58.23 hours of work at hourly rates between $205.84 and $219.63 per hour. Id. The Commissioner opposes Plaintiff's Motion, asserting that her position was substantially justified and that the hours of Plaintiff's counsel are excessive. (Doc. 27). Plaintiff filed a reply but does not seek additional fees for doing so. (Doc. 28).
Discussion
The EAJA, as codified at § 2412(d)(1)(A), provides that
a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action . . . including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United
States was substantially justified or that special circumstances make an award unjust.
Substantial Justification
As noted, attorney fees and other expenses can be awarded under the EAJA only if the Government's position is not substantially justified. See 28 U.S.C. § 2412(d)(1)(A). A position is substantially justified if it has a reasonable basis both in law and fact. Pierce v. Underwood, 487 U.S. 552, 565-66 (1988) (accepting the Ninth Circuit's holding that a substantially justified position by the Government was one that had “a reasonable basis both in law and in fact.”) (citations omitted). “The government bears the burden of showing that its position was substantially justified.” United States v. Jones, 125 F.3d 1418, 1425 (11th Cir. 1997) (citation omitted). “[U]nless the Commissioner comes forth and satisfies [her] burden, the [Commissioner's] position will be deemed not substantially justified.” Creasy v. Comm'r of Soc. Sec., 2013 WL 6009496 at *2 (M.D. Fla. 2013).
The Commissioner makes three arguments that her position was substantially justified. First, that she reasonably argued that the ALJ did not err because Dr. Murphy's notations were temporary post-surgery restrictions, not medical source opinions. (Doc. 27, p. 3). Second, her position was reasonable because any error by the ALJ was harmless because even if the ALJ had adopted the opinions, the outcome would not have changed. Id. Finally, the Commissioner argues that the opinions in question went to the ultimate issue of disability, so any heightened standard of consideration did not apply. Id. However, since at least 1986, it has been error for an ALJ to make no finding as to the weight of a treating physician's opinion. MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986) (finding it error for an ALJ to make “no finding as to the weight” of a treating physician's testimony that a claimant is disabled). Accordingly, the Court finds the Commissioner's position was not substantially justified.
Excessive Hours
The district court is responsible for excluding unreasonable or unnecessary hours from an attorney fee award. Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1301 (11th Cir. 1988). “The court . . . is itself an expert on the question and may consider its own knowledge and experience concerning reasonable and proper fees and may form an independent judgment either with or without the aid of witnesses as to value.” Id. at 1303 (citations omitted). “Therefore, where the time or fees claimed seem expanded or there is a lack of documentation or testimonial support the court may make the award on its own experience.” Id. (citation omitted). “The fee applicant bears the burden of establishing entitlement and documenting the appropriate hours and hourly rates.” Id. Courts should exclude from the fee calculation hours that were not reasonably expended, including “hours that are excessive, redundant, or otherwise unnecessary[.]” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983); see also Perkins v. Mobile Hous. Bd., 847 F.2d 735, 738 (11th Cir. 1988). As this is an EAJA case, “[i]t remains for the district court to determine what fee is ‘reasonable.'” Comm'r, Immigration and Naturalization Serv. v. Jean, 496 U.S. 154, 161 (1990) (citing Hensley, 461 U.S. at 433).
The typical work time in an EAJA case ranges between twenty (20) and forty (40) hours. See Patterson v. Apfel, 99 F.Supp.2d 1212, 1214 n.2 (C.D. Cal. 2000) (survey of Social Security disability cases suggests an average range of twenty (20) to forty (40) hours); Grey v. Chater, 1997 WL 12806 at *1-2 (S.D.N.Y. 1997) (citing cases supporting a “twenty to forty hour benchmark” for Social Security fee awards); Hardy v. Callahan, 1997 WL 470355 at *9, 9 n.10 (E.D. Tex. 1997) (finding that the typical Social Security fee award under EAJA is between thirty (30) and forty (40) hours). Further, courts have noted that the average time devoted to brief writing for a non-complex social security case is twenty (20) hours. See Marshall v. Astrue, 2011 WL 2604 768 at *3 (M.D. Ga. 2011) (citing Jackson v. Astrue, 2010 WL 2330269 (N.D. Fla. 2010)) (additional citations omitted). However, a determination of reasonable fees under the EAJA is dependent on the facts of each case. Hensley, 461 U.S. at 429. Here, Plaintiff seeks attorney fees in the amount of $12,192.60, based on 58.23 hours of work at hourly rates between $205.84 and $219.63 per hour.
Calculation of Hours
The Court begins by noting that Plaintiff's counsel was recently reminded, though after the instant motion was filed, that the Court would reduce hours sought when counsel included a billing report which contained “billing entries [that] are too vague to allow the Court to assess the reasonableness of [their] hours.” See J.J. v. Acting Comm'r of Soc. Sec., No. 1:18-CV-171, Doc. 44 p. 7 (M.D. Ga. 2022) (alterations in original) (quoting M.S. v. Comm'r of Soc. Sec., 2020 WL 9460365 at *3-4 (M.D. Ga. 2020)). Specifically, the “estimated time records result in a number of multi-task entries, making it impossible for the Court to determine accurate entries for a number of tasks.” Id. (citations omitted). The Court now again reminds Plaintiff's counsel that continued use of time records which include multi-task entries will result in the undersigned recommending an across-the-board reduction as necessary to prevent the billing of unnecessary, inappropriate, or redundant fees.
The Commissioner asserts that, cumulatively, the hours requested are excessive, and that, if the Court awards EAJA fees, the award should be reduced to no more than forty (40) hours. (Doc. 27). In reply, Plaintiff argues that the Commissioner failed to provide any reason or evidence that the hours claimed are unreasonable and that the hours claimed are generally reasonable by citation to other cases. (Doc. 28).
As to the time spent on the Brief, Plaintiff expended approximately 38.05 hours. (Doc. 26-3, pp. 1-2). However, the transcript in this matter contained 373 pages of medical evidence. (Docs. 14-7, 14-8). Accordingly, the Court finds that the 38.05 hours spent drafting the Brief is excessive and recommends deducting 11 hours, which results in billing 27.05 hours at the rate assessed for the year 2020, see infra. Marshall, 2011 WL 2604768 at *2-3.
As to the time spent on the Reply, Plaintiff expended approximately 10.7 hours. (Doc. 26-3, p. 2). The Reply pertains largely to the same issues previously addressed in Plaintiff's Brief. Accordingly, the Court finds that the 10.7 hours spent drafting the Reply is excessive and recommends deducting 8 hours, which results in billing 2.7 hours at the rate assessed for the year 2020, see infra. Perkins v. Astrue, 2011 WL 7794078 at *3 (M.D. Ga. 2011) (finding excessive four (4) hours drafting a reply brief which essentially set out the same arguments as the initial brief and reducing it to two (2) hours).
As to the time spent on the Response to the Commissioner's Objection to the Court's April 6, 2021 Recommendation, Plaintiff expended approximately 4.4 hours. (Doc. 26-3, p. 2). The Court finds that the 4.4 hours spent preparing the Response was reasonable, resulting in 0.25 hours at the rate assessed for April 2021, and 4.15 hours at the rate assessed for May 2021, see infra. See Hartage v. Astrue, 2011 WL 1123401 at *2 (M.D. Ga. 2011) (finding 10.6 hours spent preparing objections reasonable where neither party had addressed the issue presented in the recommendation).
Calculation of Rate
The Court begins by noting that Plaintiff's counsel is a named partner in the firm of Martin, Jones, & Piemonte. (Doc. 26-1, p. 5). Plaintiff's counsel's partner, Charles C. Martin, was informed in 2012 by District Judge Marc T. Treadwell of the Middle District of Georgia that failure to comply with the Middle District of Georgia's rate computation formula would not be considered to be pled in good faith. Lawton v. Astrue, 2012 WL 1119459 at *1 n.1 (M.D. Ga. 2012). More recently, Plaintiff's counsel was reminded by the undersigned of the Middle District of Georgia's rate computation formula. D.S. v. Comm'r of Soc. Sec., No. 1:19-CV-232, Doc. 33 p. 4 (M.D. Ga. 2021). That Recommendation was filed before Plaintiff's counsel filed the present Motion for Attorney Fees. The Court now notifies Plaintiff's counsel that failure to comply with the Middle District of Georgia's rate computation formula going forward may result in the undersigned recommending that the Court find counsel has not pled in good faith.
The Court's calculation of attorney fees in this type of case relies on “[t]he average CPI for the year in which the work was performed or, if work was performed in the year the Motion is filed, the average CPI for the month in which the work was performed, divided by 155.7 [March 1996's average CPI, the month that the statutory cap changed] ¶ 125 [the applicable statutory cap].” Lawton, 2012 WL 1119459 at *1 n.1. As Plaintiff's counsel did not comply with the Court's rate computation formula as to the year 2020, the Court does so as follows:
Relevant Period
Applicable CPI w/ Cap Rate calculation
Applicable Cap
Rate Compensable Hours
Total
(258.811-155.7) x 125 =
$207.78
34.48
$7,164.25
April 2021
(267.054-155.7) x 125 =
$214.40
025
$53.60
May 2021
(269.195-155.7) x 125 =
$216.12
4.15
$896.90
Aug. 2021
(273.567-155.7) x 125 =
$219.63
035
$76.87
TOTAL
$8,191.62
2020 data taken from Bureau of Lab. Stats., Summary of annual and semi-annual indexes, https://www.bls.gov/regions/mid-atlantic/data/consumerpriceindexannualandsemiannual_table.htm (last visited April 26, 2022). April 2021, May 2021, and August 2021 data taken from Doc. 26-4.
CONCLUSION
For the foregoing reasons, it is RECOMMENDED that Plaintiff's Motion for Attorney Fees (Doc. 26) be GRANTED-in-part and DENIED-in-part, and that Plaintiff be awarded attorney fees under the EAJA in the amount of $8191.62.
Pursuant to the dictates of Astrue v. Ratliff, 560 U.S. 586 (2010), it is RECOMMENDED that payment be made payable to Plaintiff and delivered to Plaintiff's counsel, unless Plaintiff does not owe a federal debt. If the United States Department of the Treasury determines that Plaintiff does not owe a federal debt, the Government may accept an assignment of EAJA fees and pay fees directly to Plaintiff's counsel.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The district judge shall make a de novo determination as to those portions of this Recommendation to which objection is made; all other portions of this Recommendation may be reviewed by the district judge for clear error. Any objection is limited in length to TWENTY (20) PAGES. See M.D. GA. L.R. 7.4.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.