Ricottelli v. Colvin

Filing 32

ORDER. Plaintiff's 31 Motion for Attorney Fees Under the Equal Access to Justice Act is GRANTED, and the parties' 28 Consent Stipulation is SO ORDERED. Signed by Judge Sarah A. L. Merriam on 4/20/2016. (Kaczmarek, S.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
------------------------------x
:
KIM M. RICOTTELLI
:
:
v.
:
:
CAROLYN W. COLVIN, ACTING
:
COMMISSIONER, SOCIAL SECURITY :
ADMINISTRATION
:
:
------------------------------x

Civ. No. 3:14CV01412(AWT)

April 20, 2016

RULING ON PLAINTIFF’S MOTION FOR AWARD OF FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT
Plaintiff Kim M. Ricottelli (“plaintiff”) filed an
application for Disability Insurance Benefits (“DIB”) on
November 10, 2011, alleging disability beginning on September
23, 2011. (Certified Transcript of the Record, Compiled on
December 12, 2014, (hereinafter “Tr.”) 127). After a hearing
before an Administrative Law Judge (“ALJ”), the ALJ denied
plaintiff benefits on December 30, 2013. See Tr. 124-39.
Following the exhaustion of his administrative remedies, the
plaintiff filed the Complaint in this case on September 25,
2014. [Doc. #1]. On February 5, 2015, the Commissioner filed her
Answer and the official transcript. [Doc. #19]. On April 6,
2015, plaintiff filed his Motion to Remand to Agency, together
with a memorandum in support (“motion to remand”). [Doc. #20].
On June 4, 2015, defendant filed her Motion to Affirm the

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Decision of the Commissioner, together with a memorandum in
support (“motion to affirm”)[Doc. #22], to which plaintiff filed
a reply. [Doc. #23].
On January 6, 2016, the undersigned issued a recommended
ruling granting plaintiff’s motion to remand and denying
defendant’s motion to affirm. [Doc. #25]. The Court found that
this matter should be remanded to the Commissioner for further
proceedings, directing: “On remand the Commissioner will address
the other claims of error not discussed herein and the treatment
records post-dating the ALJ’s opinion that were provided to the
Appeals Council.” Id. at 25. On January 29, 2016, Judge Alvin W.
Thompson accepted the undersigned’s Recommended Ruling and
remanded the case “to permit the ALJ to proceed through the
sequential evaluation and review additional evidence and request
an evaluation of plaintiff’s functioning from her treating
physician/psychiatrist.” [Doc. #26]. Judgment was entered on
February 5, 2016. [Doc. #27].
On March 21, 2016, the defendant filed a Consent
Stipulation for Allowance of Fees under the Equal Access to
Justice Act (“EAJA”), agreeing to an award of $6,500.00 in
attorney fees. [Doc. #28]. On April 11, 2016, Judge Thompson
referred the case to the undersigned for a ruling on the Consent
Stipulation. [Doc. #29]. On April 12, 2016, the undersigned

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issued an Order requiring plaintiff to provide a detailed
accounting of her costs and fees in the matter so that the Court
could determine “if the hours expended and the rates charged are
reasonable[.]” Hogan v. Astrue, 539 F. Supp. 2d 680, 682
(W.D.N.Y. 2008)(citations omitted). [Doc # 30]. On April 20,
2016, plaintiff filed a Motion for Attorney Fees Under the EAJA,
together with an itemization of time, retainer agreement and
proposed Order. [Doc. #31]. Plaintiff’s motion seeks an award
for attorney fees under the EAJA in the amount of $6,500. Id.
Although the parties have reached an agreement as to the
appropriate award of fees in this matter, the Court is obligated
to review the fee application and determine whether the proposed
fee award is reasonable. “[T]he determination of a reasonable
fee under the EAJA is for the court rather than the parties by
way of stipulation.” Pribek v. Sec’y, Dep’t of Health & Human
Servs., 717 F. Supp. 73, 75 (W.D.N.Y. 1989) (quotation marks and
citation omitted); see also Rogers v. Colvin, No.
4:13CV945(TMC), 2014 WL 630907, at *1 (D.S.C. Feb. 18, 2014);
Design & Prod., Inc. v. U.S., 21 Cl. Ct. 145, 152 (1990) (Under
the EAJA, “it is the court’s responsibility to independently
assess the appropriateness and measure of attorney’s fees to be
awarded in a particular case, whether or not an amount is
offered as representing the agreement of the parties in the form

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of a proposed stipulation.”). The Court therefore has reviewed
the plaintiff’s application for fees to determine whether the
stipulated amount is reasonable.
For the reasons set forth herein, the plaintiff’s Motion
for Attorney Fees Pursuant to the Equal Access to Justice Act
[Doc. #31] is GRANTED, for the stipulated amount of $6,500.00 in
fees.
DISCUSSION
A party who prevails in a civil action against the United
States may seek an award of fees and costs under the EAJA, 28
U.S.C. §2412, the purpose of which “is to eliminate for the
average person the financial disincentive to challenge
unreasonable governmental actions.” Comm’r, I.N.S. v. Jean, 496
U.S. 154, 163 (1990) (citing Sullivan v. Hudson, 490 U.S. 877,
883 (1989)). In order for an award of attorney’s fees to enter,
this Court must find (1) that plaintiff is a prevailing party,
(2) that the Commissioner’s position was without substantial
justification, (3) that no special circumstances exist that
would make an award unjust, and (4) that the fee petition was
filed within thirty days of final judgment. See 28 U.S.C.
§2412(d)(1)(B).
“[T]he fee applicant bears the burden of establishing
entitlement to an award and documenting the appropriate hours

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expended and hourly rates.” Hensley v. Eckerhart, 461 U.S. 424,
437 (1983).1 The Court has the discretion to determine what fee
is reasonable. See id. at 437. This Court has a duty to review
plaintiff’s itemized time log to determine the reasonableness of
the fee requested and to exclude hours “that are excessive,
redundant, or otherwise unnecessary[.]” Id. at 434. “Determining
a reasonable attorney’s fee is a matter that is committed to the
sound discretion of a trial judge[.]” Perdue v. Kenny A. ex rel.
Winn, 559 U.S. 542, 558 (2010) (quotation marks and citation
omitted).
In determining whether the amount of time billed is
reasonable, “[g]enerally, district courts in this Circuit have
held that a routine social security case requires from twenty to
forty hours of attorney time.” Hogan, 539 F. Supp. 2d at 682;
see also Cobb v. Astrue, No. 3:08CV1130(MRK)(WIG), 2009 WL
2940205, at *3 (D. Conn. Sept. 2, 2009). “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 Hensley Court interpreted 42 U.S.C. §1988, which permits
for the recovery of a reasonable attorney’s fee by a prevailing
plaintiff. Id. at 426; see 42 U.S.C. §1988. The “standards set
forth in [Hensley] are generally applicable in all cases in
which Congress has authorized an award of fees to a prevailing
party.” Hensley, 461 U.S. at 433 n.7 (quotation marks omitted).
1

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the administrative proceedings.” Rodriguez v. Astrue, No.
3:08CV154(JCH)(HBF), 2009 WL 6319262, at *3 (D. Conn. Sept. 3,
2009), approved in relevant part, 3:08CV154(JCH), 2010 WL
1286895 (D. Conn. Mar. 29, 2010).
Here, the Court finds that plaintiff has satisfied the
requirements of 28 U.S.C. §2412(d)(1)(B), and that an award of
fees may enter. Specifically, the Court finds, absent objection:
(1) plaintiff is a prevailing party in light of the Court
ordering a remand of this matter for further administrative
proceedings; (2) the Commissioner’s position was without
substantial justification; (3) on the current record, no special
circumstances exist that would make an award unjust; and (4) the
fee petition was timely filed.2 See 28 U.S.C. §2412(d)(1)(B). The
Court next turns to the reasonableness of the fees sought.
In this case, plaintiff’s counsel seeks reimbursement for a
total of 34.21 hours, at a rate of $190 per hour. [Doc. #31 at
1-2].3 The transcript in this case was comprised of 662 pages,

Plaintiff’s motion is timely as she filed it within thirty days
after the time to appeal the final judgment had expired. See
Melkonyan v. Sullivan, 501 U.S. 89, 96 (1991) (holding “that a
‘final judgment’ for purposes of 28 U.S.C. §2412(d)(1)(B) means
a judgment rendered by a court that terminates the civil action
for which EAJA fees may be received. The 30–day EAJA clock
begins to run after the time to appeal that ‘final judgment’ has
expired.”).
3 Counsel for plaintiff indicates that 40.7 hours were spent in
preparing and presenting this matter to the Court, but counsel
has agreed to reduce his time to 34.21 hours after negotiations
2

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and plaintiff’s counsel submitted a thorough and well-reasoned
brief, which included a comprehensive medical chronology.
Further, counsel did not represent plaintiff during the
administrative proceedings, and therefore had to familiarize
himself with the record prior to briefing. See e.g. Lechner v.
Barnhart, 330 F. Supp. 2d 1005, 1012 (E.D. Wis. 2004); cf.
Barbour v. Colvin, 993 F. Supp. 2d 284, 291 (E.D.N.Y. 2014).
Accordingly, the Court finds that the stipulated time of
34.21 hours is reasonable, particularly in light of the parties’
agreement, which adds weight to the claim that the fee award
claimed is reasonable. Therefore, an award of $6,500 is
appropriate. Plaintiff’s Motion for Attorney Fees Pursuant to
the Equal Access to Justice Act [Doc. #31] is GRANTED, and the
parties’ Consent Stipulation [Doc. #28] is SO ORDERED.
SO ORDERED at New Haven, Connecticut, this 20th day of
April 2016.
/s/
.
Hon. Sarah A. L. Merriam
United States Magistrate Judge

with defendant. [Doc. #31 at 2].
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