Rodriguez v. Colvin

Filing 35

RULING granting, in part, 34 First MOTION for Attorney Fees. Signed by Judge Sarah A. L. Merriam on 8/3/2016. (Katz, S.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
------------------------------x
:
ZULMA RODRIGUEZ
:
:
v.
:
:
CAROLYN W. COLVIN,
:
ACTING COMMISSIONER OF
:
SOCIAL SECURITY
:
:
------------------------------x

3:15CV01037(JCH)

August 3, 2016

RULING ON PLAINTIFF’S APPLICATION AND AFFIDAVIT FOR ATTORNEY’S
FEES UNDER 28 U.S.C. SEC. 2412 [Doc. #34]
On November 1, 2011, plaintiff, Zulma Rodriguez
(“plaintiff”) applied for supplemental security income benefits
claiming that she had been disabled since March 22, 2011.
(Certified Transcript of the Record, Compiled on August 8, 2015,
(hereinafter “Tr.”) Tr. 235-44). Following a hearing before an
Administrative Law Judge (“ALJ”), the ALJ denied plaintiff
benefits on January 31, 2014. (Tr. 8-31). After exhausting her
administrative remedies, plaintiff filed the Complaint in this
case on July 7, 2015. [Doc. #1]. On October 21, 2015, the
Commissioner filed her Answer and the official transcript. [Doc.
#13]. Following an extension of time [Doc. #20], on January 29,
2016, plaintiff filed her Motion to Reverse or Remand the
Decision of the Commissioner (“Motion to Reverse”), along with a

1

supporting memorandum [Doc. #21]. On February 1, 2016, plaintiff
filed her Statement of Material Facts. [Doc. #24].1 On March 29,
2016, the Commissioner, with the consent of plaintiff, filed a
Motion for Entry of Judgment Under Sentence Four of 42 U.S.C.
§405(g) with Reversal and Remand of the Cause to Defendant
(“Consent Motion to Remand”). [Doc. #29]. The Consent Motion to
Remand recognized that “additional administrative action is
warranted to remedy the errors in the ALJ‟s decision.” Id. at 1.
On April 11, 2016, the undersigned issued a Recommended Ruling
granting the Consent Motion to Remand, and finding as moot,
plaintiff‟s Motion to Reverse. [Doc. #31]. On April 14, 2016,
Chief Judge Janet C. Hall affirmed, adopted and ratified the
Recommended Ruling. [Doc. #32]. Judgment was entered on April
14, 2016. [Doc. #33].
On July 5, 2016, plaintiff filed an application for
attorney‟s fees together with a memorandum in support,
affidavits, and a time sheet. [Doc. #34]. The Commissioner has
not filed an opposition. For the reasons set forth herein,
plaintiff‟s Application and Affidavit for Attorney‟s Fees Under

1

This filing came after the Court scheduled a telephonic
conference to address plaintiff‟s non-compliance with the
Scheduling Order. [Doc. #22]. Specifically, at the time
plaintiff filed her Motion to Reverse or Remand the decision of
the Commissioner, plaintiff‟s memorandum exceeded the maximum
allowable page limits and failed to include as an exhibit a
Statement of Material Facts.
2

28 U.S.C. Sec. 2412 [Doc. #34] is GRANTED, in part, in the
amount of $8,660.64.
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
actions.” Commissioner, 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 the 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).
Plaintiff seeks fees in the amount of $11,300.72,
representing 58 hours of attorney time at the rate of $194.84
per hour. 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 (1983) (interpreting 42 U.S.C. §1988, which allows a
“prevailing party” to recover “a reasonable attorney‟s fee as

3

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
quotation marks omitted); Cobb v. Astrue, No.
3:08CV1130(MRK)(WIG), 2009 WL 2940205, at *3 (D. Conn. Sept. 2,
2009).
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 that: (1)
plaintiff is a prevailing party because the Court granted the
Commissioner‟s Consent Motion to Remand and ordered a remand of

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.
4

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.3 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 58 hours, at the rate of $194.84 per hour. [Doc. #34 at
2].4 Although the transcript in this case was comprised of an
enormous 4,502 pages, the Court finds that a reduction in fees
is warranted. The Court first addresses the time expended
summarizing the administrative record, preparing the proposed
factual stipulation, and preparing the memorandum of law –

Plaintiff‟s motion is timely as it was filed within thirty days
after the time to appeal the final judgment had expired. See
Melkonyan v. Sullivan, 501 U.S. 89, 96 (1991) (“[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

Although the work on the file occurred in 2015 and 2016,
counsel does not differentiate the hourly rate between the two
years. In a similar matter the Court has awarded an hourly rate
of up to $196.31 per hour. See Dupuy v. Colvin, No. 3:14CV01430
(SALM), 2015 WL 5304181, at *1 (D. Conn. Sept. 9, 2015).
Notably, in Dupuy, the Commissioner did not object to the hourly
rate sought, but rather to the hours claimed. Id. Here, because
there is no objection to the hourly rate sought, the Court finds
that the requested rate of $194.84 for the years 2015 and 2016
4

5

totaling 42.2 hours.
The Court first notes that counsel for plaintiff
represented plaintiff during the administrative proceedings, and
therefore should have had at least a working knowledge of the
administrative record. See Tr. 14 (ALJ decision noting that
plaintiff was represented by Attorney Meryl Ann Spat); Tr. 32
(appearances at administrative hearing include Attorney Meryl
Ann Spat). Plaintiff‟s counsel also has extensive experience in
this area of the law. See Doc. #34-1 (listing 77 cases in which
counsel has represented plaintiffs in civil actions in this
court). Further, although plaintiff‟s counsel submitted a
thorough and well-reasoned brief, the issues raised therein are
not overly complex or novel. Additionally, a significant portion
of the memorandum appears to incorporate the medical chronology
contained in plaintiff‟s statement of material facts.
Accordingly, the Court finds these factors warrant a reduction
in the time spent by counsel on her efforts summarizing the
administrative record, preparing the proposed factual
stipulation, and preparing the memorandum of law. 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

is reasonable.
6

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). Therefore, the Court will
reduce plaintiff‟s counsel‟s time for these efforts by two (2)
hours.
Also warranting a reduction in time is what the Court
perceives to be duplicative billing. For example, on January 4,
2016, plaintiff‟s counsel billed eight (8) hours to: “Read
review Selian et al, review/search current case law; review and
summarize impossible volume of evidence to detail and identify
all salient portions of transcript; drafting of memorandum.”
[Doc. #34-2 at 2]. In days prior, however, counsel billed for
22.5 hours reviewing and summarizing the administrative record
for purposes of drafting the stipulation of facts. Id. at 1. The
Court finds that the work performed on January 4, 2016, is
duplicative of that performed on December 31, 2015, and January
1 and 3, 2016, and that this also warrants a slight reduction in
time. Accordingly, the Court will reduce plaintiff‟s counsel‟s
time by two (2) hours.
Further warranting a reduction in counsel‟s time is what
appears to be a duplicative billing entry. On January 5, 2016,

7

plaintiff‟s counsel billed seven (7) hours for the “Drafting of
memorandum of law.” [Doc. #34-2 at 2]. On this same date, she
billed four (4) hours, for the very same task. Id. Accordingly,
the Court will reduce plaintiff‟s counsel‟s time by four (4)
hours on the basis that the record supports a finding that such
hours were duplicative of other work performed on the file.
Next, plaintiff‟s counsel billed .5 hours for “Estimated
time for correspondence/discussion regarding fees for EAJA in
absence of necessity for court ruling.” [Doc. #34-2 at 2]. The
date for this entry is “8/?/16.” The Court will not award time
that has not actually been spent on the file, and therefore, a
further reduction of .5 hours is also warranted.
The Court also finds that a reduction in time is warranted
for the time billed on April 15, 2016, for “Memorandum of Law
Reviewed.” Id. As of April 15, 2016, the undersigned had issued
a Recommended Ruling, which was adopted in an endorsement order
by Judge Hall. It is hard for the Court to discern what
memorandum of law was reviewed at this stage of the proceedings.
However, giving plaintiff‟s counsel the benefit of the doubt
that she was in fact reviewing the two-page Recommended Ruling
and related docket entries, the Court will not entirely deduct
this time, but will instead reduce it by .6 hours. See Ryan v.
Allied Interstate, Inc., 882 F. Supp. 2d 628, 636 (S.D.N.Y.

8

2012) (“[T]he Court may reduce the fees requested for billing
entries that are vague and do not sufficiently demonstrate what
counsel did.” (collecting cases)).
Finally, the Court notes that plaintiff‟s counsel billed
for the following administrative tasks at the attorney rate:
Date
7/8/15
7/8/15
7/9/15
7/15/15
7/16/15
7/30/15
8/8/15
8/11/15
9/15/15
9/17/15
10/21/15
12/29/15
12/31/15
12/31/15

1/29/16
7/5/16

Services
Receipt of Summary of ECF, Motion
IPF (sic) filing
Complaint, Application and Motion
IPF (sic) Filing
Summary of ECF with docket number
assigned
Summary of ECF order saved printed
Civil Cover Sheet SSA Commissioner
Assembly of documents for service of
process
Prepare certificate of service
Mailed Cert Letter
Certificate of Service POT
Certificate of Service Mailed
Receipt filing of green cards
certified mail
Summary of ECF; file review
Scheduling order received processed
Download of 4502 transcript pages of
records and evidence from agency
proceedings procedure; print index
to work with
File motion cc to defendant
File EAJA petition, email defense
counsel
TOTAL:

Hours
.50
.40
.10
.10
.10
1.0
.20
.20
.10
.20
.20
.35
.2
.45

.25
.10
4.45 hours

“Filing, delivery, service of papers and other similar
administrative tasks are not usually considered recoverable
expenditures of time for attorneys‟ fees.” Broome v. Biondi, 17
F. Supp. 2d 230, 236 (S.D.N.Y. 1997) (citation omitted); see

9

also Ryan, 882 F. Supp. 2d at 636 (“Plaintiffs cannot recover
for time spent by attorneys completing administrative tasks.”
(collecting cases)). Such clerical tasks are also not
compensable in cases seeking an award of attorneys‟ fees under
the EAJA. See Rivera v. Colvin, No. 3:14CV1012(WIG), 2016 WL
1363574, at *2 (D. Conn. Apr. 6, 2016) (clerical tasks are “not
compensable under the EAJA” (citing cases)); see also id. (“A
reduction of time is warranted for review of standard court
filings, particularly by an attorney with experience in social
security cases.” (citing cases)); J.O., 2014 WL 1031666, at *2
(“Time spent doing clerical tasks is not compensable.” (citation
omitted)); Gelinas v. Colvin, No. 3:13CV891(CSH), 2014 WL
2567086, at *2 (D. Conn. June 6, 2014) (“Counsel‟s hours spent
doing certain clerical tasks, such as drafting a certificate of
service, converting documents to searchable format, downloading
court documents from CM/ECF, downloading the summons, compiling
documents for service on defendant, and calendaring dates, are
not compensable under the EAJA.” (collecting cases)).
Accordingly, the Court finds a reduction in time by 4.45 hours
for the performance of clerical tasks is warranted. To the
extent that some of these clerical tasks were included in block
entries, this further warrants a reduction in time. See Gelinas,

10

2014 WL 2567086, at *2.5
Therefore, in light of the foregoing, and because “of the
Second Circuit‟s caution that fees under the EAJA should be
awarded with an „eye to moderation,‟” Gelinas, 2014 WL 2567086,
at *2 (quoting N.Y. Ass‟n for Retarded Children v. Carey, 711
F.2d 1136, 1139 (2d Cir. 1983)), the Court finds the total
reduction of 13.55 hours from 58 hours is warranted.
Accordingly, plaintiff‟s counsel is entitled to an award of fees
for 44.45 hours of compensable work, in the amount of $8,660.64.

CONCLUSION
For the reasons set forth herein, the plaintiff‟s
Application and Affidavit for Attorney‟s Fees Under 28 U.S.C.
Sec. 2412 [Doc. #34] is GRANTED, in part. The Court awards 44.45
hours of attorney time at the hourly rate of $194.84, for a
total amount of $8,660.64 for attorney time.
This is not a Recommended Ruling. This is a ruling on
attorney‟s fees which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. See 28 U.S.C.
§636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.

5

On at least two prior occasions this plaintiff‟s counsel‟s time
for clerical tasks has been disallowed. See Gelinas, 2014 WL
2567086, at *2; J.O., 2014 WL 1031666. at *2. Presumably, then,
plaintiff‟s counsel was aware that time spent on clerical tasks
is not compensable under the EAJA.
11

72.2. As such, it is an order of the Court unless reversed or
modified by the District Judge upon motion timely made.
Dated at New Haven, Connecticut, this 3rd day of August
2016.
/s/
.
Hon. Sarah A. L. Merriam
United States Magistrate Judge

12