Weeks v. Colvin

Filing 40

RULING granting in part and denying in part 37 Motion for Attorney Fees and Costs. Signed by Judge Holly B. Fitzsimmons on 3/25/15. (Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

ROGER WEEKS
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER,SOCIAL
SECURITY ADMINISTRATION

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CIV. NO. 3:13CV0232 (JCH)

RULING PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND COSTS UNDER
THE EQUAL ACCESS TO JUSTICE ACT
On December 18, 2014, counsel for Roger Weeks moved this
Court under the Equal Access to Justice Act (“EAJA”), 24 U.S.C.
§2412(d), to authorize an award of attorney’s fees in the amount
of $13,429.55. In support of the fee petition, Attorney Allan B.
Rubenstein filed an Affidavit describing the work performed on
the case and an itemized bill representing 69.1 hours of work
performed in 2013 and 2014, at an hourly rate of $189.23 for
2013 and $194.89 for 2014. [Doc. #37].

Plaintiff also seeks

reimbursement of costs in the amount of $210.

The Commissioner

challenges counsel’s right to collect attorney’s fees and, in
the alternative, objects to the hours sought as excessive.

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I.

PROCEDURAL HISTORY
Plaintiff filed this action pursuant to §205(g) of the
Social Security Act, 42 U.S.C. §405(g), to review a final
decision of the Commission of Social Security denying
plaintiff’s claim for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”). Plaintiff filed a motion
for an order reversing the decision of the Commissioner or, in
the alternative, a remand for a new hearing. [Doc. #20]. The
Commissioner moved to affirm the Commissioner’s decision. [Doc.
#23].

A recommended ruling was filed on August 8, 2014, denying

plaintiff’s motion to reverse and granting the Commissioner’s
motion to affirm. [Doc. #28].
Plaintiff filed an objection to the recommended ruling on
September 5, 2014, raising six grounds for reversal [Doc. #34].
Defendant did not file a response.

Judge Hall sustained

plaintiff’s objection on one ground, and rejected the
recommended ruling, granting in part and denying in part
plaintiff’s Motion for Order Reversing or in the alternative for
remand. [Doc. #35].
The case was remanded to the Commissioner for further
proceedings to explain the weight given Nurse Powell’s August 2,
2011, opinion. [Doc. #35 at 12-13].

The Court added that if on

remand the ALJ found no reason to discredit the August 2, 2011
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opinion, he should re-evaluate his conclusions regarding the
severity of the plaintiff’s mental limitations, and if the ALJ
found additional limitation, he should determine whether
vocational testimony is required on that basis. [Doc. #35 at 5,
7].

II.

DISCUSSION
A.

Standard of Law

The EAJA provides in relevant part
[A] court shall award to a prevailing party . . .
fees and other expenses . . . 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.
42 U.S.C. §2412(d)(1)(A).1

Subsection (B) provides that within

thirty days of a final judgment in the action, a party seeking
an award of fees must submit an application for fees, which
shows that the plaintiff is a prevailing party and is eligible
to receive an award, the amount of fees and expenses sought,
including an itemized statement showing the actual time expended
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Judgment entered in favor of Mr. Weeks on September 30, 2014.
[Tr. 35].
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and the rate at which the fees were computed, and an allegation
that the position of the United States was not substantially
justified.

28 U.S.C. §2412(d)(1)(B).

To be eligible for an

award of fees under the EAJA, an individual’s net worth must not
exceed $2,000,000 at the time the civil action was filed.

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U.S.C. §2412(d)(2)(B)(i).
The Commissioner has not challenged the timeliness of the
petition, or plaintiff’s status as a prevailing party.
Rather, the Commissioner maintains that plaintiff is not
entitled to EAJA fees because the government’s position was
“substantially justified.”

In the alternative, if this Court

finds that the government’s position was not substantially
justified, plaintiff’s EAJA request should be reduced because
the number of hours plaintiff’s counsel charged are excessive.
Defendant also maintains that $210 in costs related to
electronic research because plaintiff proceeded in forma
pauperis, and the statute that permitted plaintiff to proceed in
this manner also precludes plaintiff from then recovering any
costs from the United States government. 28 U.S.C. §1915(f)(1);
see also Maida v. Callahan, 148 F.3d 190,193 (2d Cir. 1998).

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B.

Whether the Government’s Position was “Substantially
Justified.”

The Commissioner argues that plaintiff is not entitled to
the requested EAJA fees because the government’s position was
“substantially justified.”

See 28 U.S.C. §2412(d)(1)(A). “The

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, 66 (2d Cir. 2007) (quoting Pierce v. Underwood, 487
U.S. 552, 565 (1988)). “To make this showing, the Commissioner
must demonstrate that his position had a ‘reasonable basis in
both law and fact.’”

Ericksson v. Commissioner of Social

Security, 557 F.3d 79 81-82 (2d Cir. 2009) (quoting Pierce, 487
U.S. at 563).

In assessing the Government’s position, the Court

reviews both “’the position taken by the United States in the
civil action [and] the action or failure to act by the agency
upon which the civil action is based.’” Healey, 485 F.3d at 67
(quoting 28 U.S.C. §2412(d)(2)(D)). “Defendant must show that
its position was substantially justified as to the issue upon
which this Court remanded.”

Lugo v. Astrue,

No. 11-CV-6028

CJS, 2012 WL 4026848, *3 (W.D.N.Y. Sept. 12, 2012) (citing Maxey
v. Chater, No. 93-CV-606 (RSP/GJD), 1996 WL 492906, at *3
5

(N.D.N.Y. Aug. 28, 1996) (“The Commissioner cannot prevail by
arguing that she was substantially justified in some of the
positions she took if she was not substantially justified on the
issue . . . that caused [the district court] to remand this
case.”)).
The fact that a case is remanded does not, in and
of itself, suffice to establish that the
Commissioner’s position and the ALJ’s decision
lacked substantial justification. The
substantial justification standard should not be
read to raise a presumption that the Government
position was not substantially justified, simply
because it lost the case. Substantial
justification exists when the Commissioner’s
position and the ALJ’s decision have a reasonable
basis in law and fact.
Burgos v. Astrue, Civil Action No. 3:09-cv01216 (VLB), 2011 WL
1085623, at *2 (D. Conn. Mar. 18, 2011) (internal quotation
marks and citations omitted).

Our Court of Appeals has

“repeatedly interpreted the “substantially justified” standard
to be essentially a standard of reasonableness.”

Cohen v.

Bowen, 837 F.2d 582, 586 (2d Cir. 1988).
The Court must review both the civil action and the ALJ’s
decision in determining whether the Commissioner’s position was
substantially justified. Healey, 485 F.3d at 67 (quoting 28
U.S.C. §2412(d)(2)(D)).

Here the Commissioner prevailed before

the ALJ and in the Recommended Ruling, and Judge Hall agreed
with most of the ALJ’s decision and the recommended ruling.
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Defendant conceded that the ALJ did not cite to APRN Powell’s
Mental Source Statement dated August 20, 2011.
This Court found in the Recommended Ruling that
the reasons provided to discredit APRN Powell’s
January 2011, Mental Source Statement remain
unchanged when she completed her August 2011
opinion. APRN Powell’s status as a non-acceptable
medical source remained unchanged when she
completed her August 2, 2011 opinion, and there
is no evidence in the record that ARPN Powell
treated plaintiff between January and August
2011. A second Mental Source Statement from APRN
Powell on the day of plaintiff’s rescheduled
hearing before the ALJ, is not evidence of
“ongoing” mental health treatment. In weighing
the evidence of record, the ALJ properly
considered PA-C Lourenco’s treatment records from
May 6, 2008 through February 22, 2011, despite
her status as a non-acceptable medical source.
[Doc. #28 at 77].

Judge Hall found that “the court cannot

speculate as to the ALJ’s reasoning regarding the August 2, 2011
statement, as he provides none in his Decision” and “the ALJ’s
Decision was silent as to the weight, if any, given to Nurse
Powell’s August 2, 2011.” [Doc. #35 at 10].

In addition, the

Court found that it appeared that the “ALJ failed to ‘consider
all evidence.’” [Doc. #35 at 10 n.4].

The August 2, 2011

opinion of Nurse Powell indicates that it was mailed and faxed
to the ALJ on August 4, 2011, in which case it should have been
included in the record because, according to the hearing
transcript, the record closed on August 5, 2011. [Tr. at 31,
605]. However, the Order of the Appeals Council indicated that
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Nurse Powell’s August 2, 2011, opinion was added to the record
as “additional evidence,” [tr. at 4], and exhibit 13F was not
included in the list of exhibits made part of the ALJ’s
decision. [Tr. 20-24]. On this record, there is an error of law,
in that the ALJ did not properly weigh Nurse Powell’s opinion,
and there may be an issue of fact whether the August 2, 2011,
opinion was considered by the ALJ.

“While there are various

factors that may be considered in determining whether the
position of the United States was substantially justified, ‘if
the case turns on a question of law, the government can show
that its position was substantially justified even if its legal
argument is ultimately rejected, if it can show that the
question was close or unsettled.’”

Cooper v. U.S. Postal

Service, No. 3:03CV01694 (DJS), 2011 WL 4435692, at *2 (D. Conn.
Sept. 23, 2011) (quoting Segers v. Astrue, 622 F. Supp. 2d 249,
254 (E.D. Pa. 2009)). The Commissioner has not made that
showing.
C.

Fee Award

The EAJA provides for an award of “reasonable” fees and
expenses. 28 U.S.C. § 2412(d)(2)(A). The statute further provides
that the “amount of fees awarded under this subsection shall be
based upon prevailing market rates for the kind and quality of
the services furnished,” except that attorney's fees are capped
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at $125 per hour unless the court determines that an increase in
the cost of living or other special factor, such as the limited
availability of qualified attorneys to handle the type of
proceeding involved, justifies a higher fee. Id.

Additionally, a

district court enjoys broad discretion in determining what is a
reasonable amount of time expended in pursuing a claim. See Aston
v. Sec’y of Health & Human,

808 F.2d 9, 11 (2d Cir. 1986); New

York Ass’n for Retarded Children v. Carey, 711 F.2d 1136, 1139
(2d Cir. 1983) (“As we have warned in the past, attorney’s fees
are to be awarded with an eye to moderation seeking to avoid
either the reality or appearance of awarding windfall fees.”
(citation and quotation marks omitted)).
1.

Hourly Rate

Plaintiff seeks an hourly rate of $189.23 for 6.6 hours of
work performed in 2013 and $194.89 for 62.5 hours of work
performed in 2014. Defendant did not oppose these rates. The
Court will accept plaintiff’s counsel’s certification that these
rates accurately reflect the increase in the cost of living
based on the Consumer Price Index. [Doc. #37 at 4].

Thus, the

only issue for the Court is the reasonableness of the number of
hours for which plaintiff’s counsel seeks compensation.

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2.

Number of Hours Requested

Plaintiff seeks an award of fees for 69.1 hours, for a
total fee award of $13,429.55. Defendant argues this request is
excessive.2

The Court agrees.

“In calculating what constitutes

a “reasonable fee” under the EAJA, ‘the district court should
exclude excessive, redundant or otherwise unnecessary hours, as
well as hours dedicated to severable unsuccessful claims.’”
Cobb v. Astrue, No. 3:08CV1130 (MRK), 2009 WL 2940205, at *2 (D.
Conn. Sept. 2, 2009)

(quoting Quarantino v. Tiffany & Co. 166

F.3d 422, 425 (2d Cir. 1998) and citing Barfield v. N.Y. City
Health and Hosps. Corp., 537 F.3d 132 (2d Cir. 2008)).
“’Courts throughout the Second Circuit have consistently
found that routine Social Security cases require, on average,
between [twenty] and [forty] hours of attorney time to
prosecute.’” Poulin v. Astrue, No. 3:10CV1930 (JBA), 2012 WL
264579, at *3 (D. Conn. Jan. 27, 2012) (quoting Ledonne v.
Astrue, No. 3:08CV1525 (PCD), at 7 (D. Conn. Apr. 6, 2010) and

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Defendant argues that plaintiff’s requested number of
hours should be limited to thirty hours, at an hourly rate of
$194.89, for an award of $5,846.70. The Commissioner next
argues that that an additional reduction of ten hours is
warranted due to plaintiff’s “limited degree of success,” for a
total of twenty hours, at an hourly rate of $194.89, for a total
fee award of $3,897.80.
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citing Cobb v. Astrue, 08CV1130 (MRK)(WIG), 2009 WL 2940205, at
*2-3 (D. Conn. Sept. 2, 2009)).
Plaintiff seeks compensation for 1.8 hours to review the
Court’s Order to Show Cause for failure to prosecute [doc. #14],
to file a Motion for Extension of time [doc. #15], and to review
related Court Orders regarding requests for extension of time.
See Doc. #37-2 (time entries August 15, 21, 22, September 16,
October 18].

The Court declines to award fees for this time.

Accordingly, the Court reduces the time sought by 1.8 hours.
Plaintiff seeks 23.2 hours to draft the Motion to Reverse
and/or Remand. It is noted that plaintiff’s counsel represented
Mr. Weeks at the administrative level and did not require as
much time to acquaint himself with his medical records. The
administrative record totaled 609 pages with just 150 pages of
medical evidence. The Court agrees that the medical records were
not extraordinarily voluminous, counsel was familiar with the
record and administrative proceedings, the issues were not
overly complex and plaintiff did not raise novel questions of
law, thereby justifying a reduction of ten hours.
Plaintiff seeks compensation for 20 hours, April 21, 2014
through May 22, 2014, to review defendant’s responsive pleading
and to prepare a reply brief and addendum.

[Doc. ## 26, 27].

The Court finds that a reduction of ten hours is warranted as
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plaintiff’s reply brief raises that same arguments set forth in
his motion to reverse and/or remand. Plaintiff also seeks
compensation for fourteen hours, August 9, 2014 through
September 5, 2014, to review the Recommended Ruling and to file
an objection. The Court finds that a further reduction of seven
hours is warranted as plaintiff’s objection raises the same
arguments set forth in his motion to reverse and/or remand, and
reply. The overall reduction of the fee award also reflects the
limited degree of success.

See Barfield v. N.Y. City Health &

Hosps. Corp., 537 F.3d 132, 152 (2d Cir. 2008) (“[W]e are
mindful of the Supreme Court’s observation that ‘the most
critical factor’ in a district court’s determination of what
constitutes reasonable attorney’s fees in a given case ‘is the
degree of success obtained’ by the plaintiff.”) (quoting Farrar
v. Hobby, 506 U.S. 103, 114 (1992)).

Accordingly, the Court

reduces the 69.1 hours sought by 28.8 hours for a compensable
total of 40.3 hours.
3.

Costs

Finally, the Commissioner argues that denial of costs is
appropriate because plaintiff proceeded in forma pauperis, and
the statute that permitted plaintiff to proceed in this manner
also precludes recovery of any costs from the United States

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government.

28 U.S.C. §1915(f)(1); Maida v. Callahan, 148 F.3d

190, 193 (2d Cir. 1998).

III.

The Court agrees.

CONCLUSION
For the reasons stated, plaintiff’s Motion for Attorney’s
Fees and Costs under the Equal Access to Justice Act [Doc. #37]
is GRANTED in part and DENIED in part. Attorney’s fees are
awarded in the amount of $7,854.06, representing 40.3 hours of
work at an hourly rate of $194.89. The motion for costs is
DENIED.
This is not a recommended ruling.

This is a ruling on

attorney’s fees and costs which is reviewable pursuant to the
"clearly erroneous" statutory standard of review.

28 U.S.C. '636

(b)(1)(A); Fed. R. Civ. P. 6(a), 6(e) and 72(a); and Rule 2 of
the Local Rules for United States Magistrate Judges.

As such,

it is an order of the Court unless reversed or modified by the
district judge upon motion timely made.
SO ORDERED at Bridgeport this 25th day of March 2015.

_____/s/___________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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