Dupuy v. Colvin

Filing 23

RULING granting in part and denying in part 20 Motion for Attorney Fees. Signed by Judge Sarah A. L. Merriam on 9/9/15. (Esposito, A.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
------------------------------x
:
INGRID DUPUY
:
:
v.
:
:
CAROLYN W. COLVIN,
:
ACTING COMMISSIONER OF
:
SOCIAL SECURITY
:
:
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3:14CV01430(SALM)

September 9, 2015

RULING ON PLAINTIFF'S MOTION FOR ATTORNEY'S FEES
On September 28, 2010, the plaintiff applied for disability
insurance benefits (“DIB”) and on September 29, 2010, the
plaintiff applied for supplemental security income (“SSI”)
benefits claiming that she had been disabled since October 17,
2008. [Tr. 24] After a hearing before an ALJ, the ALJ denied
plaintiff benefits on May 22, 2013. [Tr. 24-39] After exhausting
her administrative remedies, the plaintiff filed the Complaint
in this case on September 29, 2014. [Doc. #1] On December 29,
2014, the Commissioner filed her Answer and the official
transcript. [Doc. #11] On February 26, 2015, the plaintiff filed
her Motion for Reversal and Remand, together with a memorandum
in support. [Doc. #13] The Commissioner’s response to the motion
was due by April 27, 2015. On April 23, 2015, a consent for
remand was filed by the parties. [Doc. #15] The consent
recognized that the plaintiff should be given a new hearing and
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the opportunity to introduce new evidence, and called upon the
ALJ to, inter alia, “reassess Plaintiff’s impairments at step
two of the sequential evaluation and reassess Plaintiff’s
maximum residual functional capacity[.]” [Doc. #15 at 1-2]
Shortly thereafter the parties filed a consent to jurisdiction
of the Magistrate Judge. [Doc. #16] Judgment was entered on May
5, 2015.1 [Doc. #19]
On June 5, 2015, the plaintiff filed a motion for
attorney’s fees together with a memorandum in support, an
affidavit, and time sheets. [Doc. #20] The defendant filed a
brief in opposition to the motion on June 26, 2015 [Doc. #21]
and the plaintiff filed a reply on June 30, 2015. [Doc. #22]
For the reasons set forth herein, the plaintiff’s Motion
for Attorney Fees [Doc. #20] is GRANTED, in part, in the amount
of $9,260.60 in fees and $80.58 in costs for a total award of
$9,341.18.
DISCUSSION
A party who prevails in a civil action against the United
States may seek an award of fees and costs under the Equal
Access to Justice Act (“EAJA” or the “Act”), 28 U.S.C. §2412,
the purpose of which is “to eliminate for the average person the
financial disincentive to challenging unreasonable government

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Although the Judgment was entered on May 5, 2015, the
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actions.” Commissioner, I.N.S. v. Jean, 496 U.S. 154, 163 (1990)
(footnote & citation omitted). 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. 28 U.S.C. §2412(d)(1)(B).
In her main motion, the plaintiff seeks fees in the amount
of $9,863.90, consisting of the following:
WORK PERFORMED BY

HOURS

RATE

TOTAL

Atty. Zimberlin(2014)

1.85

$196.31

$

363.17

Atty. Zimberlin(2015)

44.58

$194.93

$8,689.98

Paralegal

2.3

$115.00

$

264.50

Law Clerk

4.75

$115.00

$

546.25

The defendant does not contest the plaintiff’s status as a
prevailing party in this matter, or the hourly rates used by
counsel. Rather, the defendant objects to the number of hours
claimed as excessive.
It is plaintiff’s burden to establish entitlement to a fee
award, and the Court has the discretion to determine what fee is
“reasonable.” Hensley v. Eckerhart, 461 U.S. 424, 433, 437

notice was electronically docketed on May 6, 2015.
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(1983) (interpreting 42 U.S.C. §1988, which allows a “prevailing
party” to recover from “a reasonable attorney’s fee as part of
the costs”).2 This Court has a duty to review plaintiff’s
itemized time log to determine the reasonableness of the hours
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.” J.O. v. Astrue, No.
3:11CV1768(DFM), 2014 WL 1031666, at *1 (D. Conn. Mar. 14, 2014)
(quoting Perdue v. Kenny A., 559 U.S. 542, 558 (2010)).
“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)(JGM), 2012 WL
264579, at *3 (D. Conn. Jan. 27, 2012)(citations & internal
quotations omitted); Cobb v. Astrue, No. 3:08CV1130(MRK)(WIG),
2009 WL 2940205, at *3 (D. Conn. Sept. 2, 2009). Notably, the
case law finding that twenty to forty hours represents an
average necessary investment of time pre-dates the adoption in
this District of a new practice requiring the plaintiff to
provide a detailed medical chronology, with citations to the

2

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.’” Id. at 433, n.7.
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record, in the motion for remand.
In this case, plaintiff’s counsel seeks reimbursement for a
total of 46.43 hours of attorney time plus 7.05 hours of law
clerk and paralegal time. [Doc. #20-1 at 5] The transcript in
this case was comprised of over 2,000 pages, and plaintiff’s
counsel did submit a thorough brief. However, the factual and
legal issues involved were not overly complex, particularly
given plaintiff’s counsel’s extensive experience in this area of
the law and the fact that counsel represented the plaintiff
throughout the administrative proceedings. Cf. Rodriguez v.
Astrue, No. 3:08CV154(JCH)(HBF), 2009 WL 6319262, at *3 (D.
Conn. Sept. 3, 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 administrative
proceedings.”) (internal quotations & multiple citations
omitted), approved in relevant part, 3:08CV154(JCH), 2010 WL
1286895 (D. Conn. Mar. 29, 2010). Here, only the length of the
record weighs in favor of a large fee award. Further, a review
of motions filed by plaintiff’s counsel in prior cases reveals
that certain portions of the motion in this case were copied
from prior motions. Compare, e.g., West v. Colvin,
3:14CV852(AVC), Doc. #13-1 at 23-24, with Dupuy, Doc. #13-1 at

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21-22. Accordingly, after a careful examination of plaintiff’s
counsel’s specific entries, a small reduction in time is
warranted.
A.

SUBSTANTIVE BRIEFING
The Court will not reduce the time allotted to preparation

of the detailed medical chronology in this case. However, the
Court reduces the time claimed for drafting the legal arguments
in the brief by 2.0 hours of attorney time, to account for
apparent efficiencies relating to the use of research and
writing from prior motions.
B.

MINISTERIAL TASKS
Defendant challenges the time plaintiff spent on

“ministerial tasks.” The Court finds that counsel’s time entries
for April 27, 2015, for 0.7 hours to conduct a brief email
conversation and to review two docket entries is excessive, and
will be reduced to 0.4 hours. Likewise, the Court finds that the
time billed by the paralegal for reviewing materials on October
2, 2014 (0.8 hours), and for receiving certified mail receipts
in October and November 2014 (0.3 hours) are excessive.
Accordingly these paralegal hours will be reduced to 0.4 hours
and 0.2 hours respectively. Finally, counsel claims 1.0 hours
for the task of “redact[ing] time sheet entries in exercise of
billing judgment.” [Doc. #20-2 at 5] Counsel asserts that she

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“redacted 2.61 hours of attorney time in the exercise of billing
judgment.” [Doc. #20-1 at 5] To claim reimbursement for the time
spent reducing a bill is ironic, at best, and the Court will not
award any fees for this task.
Thus in total the Court reduces the fees by 1.3 hours of
attorney time and 0.5 hours of paralegal time for ministerial
tasks.
C.

EAJA PETITION AND REPLY
The defendant does not challenge the 2.0 hours billed by

plaintiff’s counsel for preparing her motion for EAJA fees. This
may be because, in this District, judges have routinely allowed
a plaintiff’s attorney to bill up to two hours for preparing an
EAJA petition. See, e.g., Texidor v. Colvin, No.
3:10CV701(CSH)(JGM), 2015 WL 164062, at *4 (D. Conn. Jan. 13,
2015)(awarding two hours for preparation of EAJA petition);
Barrow v. Astrue, No. 3:11CV00828(VLB)(TPS), 2013 WL 2428992, at
*4 (D. Conn. Jun. 4, 2013) (awarding two hours for preparation
of EAJA petition); Hosking v. Astrue, No. 3:10CV64(MRK)(WIG),
2010 WL 4683917, at *2 (D. Conn. Oct. 1, 2010)(awarding two
hours for preparation of EAJA petition); Gelinas v. Colvin, No.
3:13CV891(CSH)(JGM), 2014 WL 2567086, at *3 (D. Conn. June 6,
2014)(same). Thus, the Court approves the award of 2.0 hours of
attorney time for preparation of the EAJA petition.

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However, counsel for the plaintiff now seeks compensation
for an additional 4.8 hours spent in preparation of the reply
brief. [Doc. #22-2] This is excessive. In particular, the Court
notes that counsel claims 0.5 hours was required to brief the
issue of time claimed for “adding record cites.” This portion of
the reply brief is less than one page long and adds nothing to
the Court’s base of knowledge. As counsel are aware, reply
briefs are not required, and here, counsel claims more than
twice as much time for preparing a reply brief as was claimed in
preparing the original motion. Little of substance was provided
in the reply. Accordingly, the Court reduces the award of fees
for the preparation and filing of the reply to 0.5 hours,
representing a reduction of 4.3 hours.
CONCLUSION
For the reasons set forth herein, the plaintiff’s Motion
for Attorney’s Fees [Doc. #20], as supplemented by the Reply
[Doc. #22] is GRANTED, in part. The Court awards 1.85 hours of
attorney time at an hourly rate of $196.31 [total $363.17]; plus
41.28 hours of attorney time at an hourly rate of $194.93 [total
$8,046.71]; plus 0.5 hours of attorney time at an hourly rate of
$194.93 for the reply brief [total $97.47]; for a total of 43.13
hours of attorney time and a total amount of $8,409.89 for
attorney time. In addition, the Court awards 4.75 hours of law

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clerk time at an hourly rate of $115.00 [total $546.25] and 1.8
hours of paralegal time at an hourly rate of $115.00 [total
$207.00. Costs are awarded in the amount of $80.58; no costs are
awarded for the filing of the reply brief.

Accordingly the

total award of costs and fees is $9,341.18.
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. Dated this 9th day of September, 2015 at New
Haven, Connecticut.
/s/
.
Hon. Sarah A. L. Merriam
United States Magistrate Judge

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