Rodman v. Commissioner of Social Security

Filing 42

ORDER granting 38 Plaintiff's Application for an Award of Attorney Fees under the Equal Access to Justice Act. Plaintiff is awarded fees in the amount of $14,255.65 plus #371.51 in costs, by Chief Judge Wiley Y. Daniel on 1/12/12.(gmssl, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 09-cv-00770-WYD
MICHAEL G. RODMAN,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of the Social Security Administration,
Defendant.

ORDER

THIS MATTER is before the Court on Plaintiff’s Application for an Award of
Attorney Fees under the Equal Access to Justice Act [“EAJA”], 28 U.S.C. § 2412, filed
June 7, 2011. The motion requests fees in the total amount of $14,725.97 for
approximately 82 hours of attorney time (after a voluntary reduction of hours expended
on the case by 20%) as well as $371.51 in expenses. Plaintiff attaches documentation
to the Application that supports the fees. The Commissioner filed a Response in
opposition to Plaintiff’s Application on June 21, 2011, and a Reply was filed by Plaintiff
on July 1, 2011.
Turning to my analysis, the EAJA provides for an award of attorney’s fees to a
prevailing party in a civil action brought against the United States unless the court finds
that the position of the United States was substantially justified or special circumstances
make an award unjust. 28 U.S.C. § 2412(d)(1)(A). The Commissioner opposes
Plaintiff’s Application on the grounds that the fees requested by Plaintiff’s counsel as

well as his hourly rate are not reasonable and because special circumstances make the
full award of fees unjust. Issues of prevailing party status and substantial justification
are not disputed by the Commissioner.
I find, for the reasons set forth in Plaintiff’s Application and Reply, that Plaintiff
was the prevailing party and that the position of the United States was not substantially
justified. I also reject the Commissioner’s argument that special circumstances make
the full award of fees unjust. The Commissioner argues as to those circumstances that
Plaintiff’s counsel unnecessarily increased the fees in the case by choosing to contest
the Commissioner’s motion for a voluntary remand, and that he did not obtain an
additional benefit for his client by contesting that motion. Additionally, instead of
immediately informing defense counsel of a subsequent award of benefits to Plaintiff by
the Commissioner, the Commissioner argues that Plaintiff’s counsel unnecessarily
expended time composing a reply brief and did not notify defense counsel about the
award until after the reply was filed.
The Commissioner asserts that the above circumstances make an award of fees
for all the hours claimed unjust, and that the Court should deny Plaintiff’s claim for 21.8
hours (the hours expended authoring a reply brief and opposing the agency’s motion for
voluntary remand), as counsel’s efforts were unnecessary and ultimately unsuccessful.
He further argues that many courts have found that special circumstances under the
EAJA exist in cases where the plaintiff opposes the Commissioner’s motion to remand
the case and a remand is the Court’s ultimate remedy.
I reject the Commissioner’s argument that a reduction of fees is necessary due to
the special circumstances presented in this case. I agree with Plaintiff that he did, in
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fact, receive a benefit by opposing the motion for remand and allowing the Court to
address the motion. As Plaintiff notes, the motion for remand does not concede any of
the specific errors that were alleged in the Complaint and the Opening Brief, and did not
propose to address any of those issues. Indeed, the motion alleged that the ALJ’s
decision was supported by substantial evidence, and only sought to remand to reconcile
any discrepancy between the March 2008 decision of the ALJ and the December 2009
determination by the Social Security Administration.
Plaintiff’s response to the motion for remand argued for a remand with an award
of benefits, and asked in the alternative that the Court remand with instructions to give
the Commissioner guidance as to errors that were committed by the ALJ. In my ruling
on the motion to remand, I agreed with Plaintiff that before any remand occurs, I should
first address the merits of the appeal so that any errors found could be addressed on
remand. The Order on the merits in this case found that the ALJ’s decision was not
supported by substantial evidence, and found numerous errors that the Court directed
be corrected on remand. Thus, Plaintiff obtained significant relief not addressed by the
motion to remand.
I also reject the Commissioner’s argument that special circumstances make a
reduction of fees inappropriate because Plaintiff’s counsel did not immediately advise
counsel for the Commissioner that Plaintiff had received, in December 2009, a favorable
decision finding Plaintiff disabled as of August 26, 2006.1 Instead, Plaintiff’s attorney

1

This award was made in reference to a new application for benefits filed by Plaintiff during the
pendency of this lawsuit. The new award, under applicable rules, could not award benefits any earlier
than the prior decision of the ALJ. Thus, an issue remained as to whether benefits should be awarded
prior to the date of the administrative decision.

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expended time on his reply, notifying Commissioner’s counsel only on January 21,
2010, 20 days after reviewing the award notice and the day before Plaintiff filed his reply
brief. I do not find that this makes a reduction in fees appropriate. I agree with Plaintiff
that it was reasonable for him to assume that the Commissioner’s counsel would have
receive this notice from his own client.
I now turn to the reasonableness of the fees expended. The Commissioner
argues that Plaintiff has not demonstrated that the hours expended, even after counsel
reduced the fees by 20%, are reasonable, and that Plaintiff should be awarded fees for
only 30 hours of attorney time. In support of that argument, the Commissioner asserts
that courts have found that the typical number of hours spent on a social security
disability claim is between 20 and 40, and reduced the fees accordingly. In light of that,
it is argued that Plaintiff’s application seeking approximately 82 hours for work on a
routine social security disability case, more than twice the upper end of hours courts
finds reasonable and after a voluntary reduction of hours, is not reasonable.
I reject this argument by the Commissioner as a blanket basis to reduce fees, as
each case must be looked at individually based on the circumstances in that case.
Indeed, the EAJA does not provide for a flat rate for social security cases or that cases
be paid based on some average amount of time generally expended. Rather, “EAJA
fees are determined . . . by the ‘time expended’ and the attorney's ‘[hourly] rate,’. . . .”
Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (quoting 42 U.S.C. § 2412(d)(1)(A) and
(B)).
The Commissioner further points out that the administrative record in this case is
very modest, and that the briefs submitted by Plaintiff contain routine arguments made
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in practically in every social security disability case. Further, it is argued that Plaintiff’s
attorney is an experienced social security attorney from whom the government should
expect some additional efficiency. Yet counsel spent seven hours preparing the
complaint and 1.4 hours on the Joint Case Management Plan, and more than 56 hours
researching, writing, and editing his opening brief.
Turning to my analysis, I must determine whether the hours spent representing
the Plaintiff were “reasonably expended”. See Blum v. Stenson, 465 U.S. 886, 901
(1984); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); see also 28 U.S.C.
§ 2412(d)(2)(A). “A district court should approach this reasonableness inquiry ‘much as
a senior partner in a private law firm would review the reports of subordinate attorneys
when billing clients.’” Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir.
1998) (quoting Ramos v. Lamm, 713 F.2d 545, 555 (10th Cir. 1983)). In making this
determination, the court should “examine hours allotted to specific tasks.” Ramos, 713
F.2d at 554. I also note in connection with this inquiry that counsel are expected to
exercise their “billing judgment”, “mak[ing] a good faith effort to exclude from a fee
request hours that are excessive, redundant, or otherwise unnecessary.” Robinson,
160 F.3d at 434, 437.
In the case at hand, I find that the hours incurred by Plaintiff’s counsel were
reasonably expended. While the Commissioner argues that counsel unreasonably
spent seven hours preparing the complaint, I disagree. The Amended Complaint filed
by counsel2 went into detail about the facts of the case and the specific errors

2

The initial complaint was filed by Plaintiff who at that time was proceeding pro se.

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committed by the ALJ. It obviously required an analysis of the record in order to
determine what the errors were. Thus, I find that the time incurred in connection with
the Amended Complaint was reasonable.
The Commissioner’s response also makes reference to the 1.4 hours of time
incurred in preparation of the proposed Case Management Plan, arguing that this is a
standard pleading filed in every social security case in this district. However, Plaintiff
notes that after conferring with defense counsel, Plaintiff’s counsel revised the Plan to
provide that Plaintiff could incorporate into his opening brief a request for remand
pursuant to sentence 6 for any additional evidence that was being presented to the
Court. Research was also conducted on this issue. Plaintiff points out that
incorporating this issue into the briefs saved the parties briefing time as a separate
motion did not have to be prepared and filed on this issue. Finally, Plaintiff states that a
conference with defense counsel suggested looking at the case for a voluntary remand
regarding the new evidence. All of this time was incurred in connection with the
proposed Case Management Plan. As a result, I find that the fees expended on the
Plan were reasonably expended.
As to the 56 hours spent preparing the opening brief, I agree that on the surface
this seems somewhat excessive as it exceeds the average amount of time spent in
social security cases and the record in this case was not extensive. However, Plaintiff
cited multiple reasons for seeking reversal and payment of a benefits or a remand,
which required extensive analysis. Most of the issues had to be closely tied to the
administrative record, and a detailed review and analysis of the record was required.
This is particularly true as Plaintiff’s counsel did not originally represent Plaintiff in the
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underlying administrative proceeding, and did not have the benefit of familiarity with the
record before commencing his representation.
The opening brief, not counting multiple pages of attachments, was 52 pages
long. The response brief was 40 pages, showing that the Commissioner also
conducted a significant analysis of the issues. The Order on the merits was 41 pages,
requiring a substantial expenditure of time by the Court on the issues raised in the
appeal. Based on the foregoing, I find that the time incurred on the opening brief was
reasonably expended. I also find that the remaining hours spent by Plaintiff’s counsel
on the case, which were not specifically objected to by the Commissioner, were
reasonably incurred, particularly when I factor in the fact that Plaintiff’s counsel
exercised billing judgment by already reducing the amount of fees sought by 20%.
Finally, I address the issue of Plaintiff’s counsel’s hourly rate. Plaintiff’s counsel
seeks fees at the rate of $179.41, based on the rate at the time of the fee award by the
Court. The Commissioner argues that the hourly rate should be the rate at the time the
work was performed. In deciding this issue, I must look at the statutory language. 28
U.S.C. § 2412(d)(1)(A) states that “the court shall award to a prevailing party. . . other
expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that
party in any civil action. . . .” The pertinent issue is when the fees were “incurred.”
I agree with the Commissioner that fees were incurred when the work was
actually performed, not when the fees are awarded by the Court. In this case, most of
Plaintiff’s counsel’s work was completed by November 2009. Thus, I will use that
timeframe, rather than March 2011 or the present date, as the appropriate date for the

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cost of living calculation. Accordingly, Plaintiff shall be awarded attorney fees at the
rate of $173.68 per hour.
As to the award of fees, Plaintiff’s counsel incurred 102.6 hours of fees which,
when multiplied by the hourly rate of $173.68, totals $17,819.57. Reducing that amount
by 20%, per Plaintiff’s directive based on his counsel’s billing judgment, the amount of
fees to be awarded is $14,255.65. Plaintiff is also awarded $371.51, which represents
an award of $350.00 for the filing fee and $21.51 for certified mailing as costs under 28
U.S.C. § 1920. Accordingly, it is
ORDERED that Plaintiff’s Application for an Award of Attorney Fees under the
Equal Access to Justice Act, 28 U.S.C. § 2412, filed June 7, 2011, is GRANTED.
Plaintiff is awarded fees in the amount of $14,255.65 plus $371.51 in costs.
Dated: January 12, 2012
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

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