Abhsie v. Colvin
Filing
31
MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 10/25/2017. (ma,)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TIMOTHY ABHSIE,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner, Social Security
Administration,
Defendant.
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No. 16 CV 7357
Magistrate Judge Young B. Kim
October 25, 2017
MEMORANDUM OPINION and ORDER
Before the court is Plaintiff Timothy Abhsie’s motion for fees and costs
pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. §§ 2412(a),(d).
Abhsie argues that he is entitled to $13,567.17 in fees and costs as a prevailing
party under EAJA. The motion is granted for the following reasons:
Background
Abhsie filed an application for disability insurance benefits in March 2011,
which was denied by an administrative law judge (“ALJ”) in August 2012. See
Abhsie v. Colvin, No. 13 CV 8886, 2015 WL 1292536, at *1 (N.D. Ill. March 17,
2015). Abhsie appealed the ALJ’s decision, and in March 2015 the court remanded
the case so that the ALJ could address evidence that supported Abhsie’s complaints
of pain and re-evaluate the medical opinions in the record. Id. at *4-6. On remand
the ALJ again denied Abhsie’s application for benefits, and Abhsie again appealed
the ALJ’s decision. (See R. 1, Compl.) On July 6, 2017, this court remanded the
case for a second time, finding errors in the ALJ’s symptom analysis, treatment of
the medical opinions, and RFC assessment. (R. 23.)
Abhsie now seeks an award of $13,567.171 in attorney and legal assistant
fees and costs under EAJA. This request is based on an hourly attorney rate of
$195.73 for time billed primarily in March 2017. (R. 25-1, EAJA Itemization of
Time.) The government does not contest Abhsie’s entitlement to recover fees or
costs, but does contend that both the hourly rate and the number of hours billed are
excessive and should be reduced. (R. 28, Govt.’s Resp.)
Analysis
A.
Hourly Rate
Pursuant to EAJA, an award of attorney fees “shall be based upon prevailing
market rates for the kind and quality of the services furnished, except that . . .
attorney fees shall not be awarded in excess of $125.00 per hour unless the court
determines that an increase in the cost of living . . . justifies a higher fee.”
28 U.S.C. ' 2412(d)(2)(A)(ii). In 2015 the Seventh Circuit held that “[c]ourts should
generally award the inflation-adjusted rate according to the [Consumer Price Index
(“CPI”)], using the date on which the legal services were performed.” Sprinkle v.
Colvin, 777 F.3d 421, 428 (7th Cir. 2015). However, while the CPI suffices as proof
of an increase in the cost of living, claimants must still show evidence that “the rate
they request is in line with those prevailing in the community for similar services
Abhsie initially sought $12,882.12 in fees and costs, representing 62.85 hours of
attorney work and 1.9 hours of legal assistant work. (R. 25, Pl.’s Mot. ¶ 11.) In his
reply, Abhsie seeks an additional $685.05 in fees for 3.5 hours of attorney work on
the reply brief, for a new total of $13,567.17. (R. 29, Pl.’s Reply at 6.)
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by lawyers of comparable skill and experience.” Id. Attorney affidavits, or in some
cases even a single sworn statement from a claimant’s attorney setting forth the
prevailing market rate, can be sufficient for this purpose. Id. at 428-29.
Abhsie supports his requested hourly attorney rate of $195.73 by attaching
cost-of-living calculations based upon the “all items” portion of the CPI for all urban
consumers (“CPI-U”).2 (See R. 25-3.) One of Abhsie’s attorneys, Barry Schultz, also
states in the motion that he charges $200 per hour for associates with zero to two
years of experience. (R. 25, Pl.’s Mot. at 6.) Abhsie further provides affidavits from
five other attorneys with social security disability experience who charge hourly
rates ranging from $165 to $550 for work similar to what Abhsie’s attorneys
performed in this case.3 (See R. 25-4, 5, 6, 7, 9.) Finally, Abhsie attaches a survey
of law firm billing rates from 2010. (See R. 25-10.)
The government argues that the hourly rate Abhsie seeks here is too high
because the junior attorney who bore primary responsibility for preparing Abhsie’s
In Sprinkle, the Seventh Circuit left to each district court’s discretion whether to
use the national or the regional CPI rate when calculating the inflation-adjusted
hourly rate. 777 F.3d at 428 n.2. Because the government does not contend that
the regional rate should apply here, the court uses the national CPI rate proposed
by Abhsie.
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Abhsie includes a sixth affidavit from Attorney David Sutterfield, who attests
that his practice “includes the representation of plaintiffs with respect to claims
brought pursuant to [the] Illinois Nursing Home Care Act . . . .” (See R. 25-8,
Sutterfield Aff. ¶ 5.) Although Sprinkle only requires that claimants provide
evidence regarding rates for services “similar” to the services for which fees are
requested, see 777 F.3d at 428, Abhsie has offered no explanation for how claims
under the Illinois Nursing Home Care Act are similar to social security claims. At
any rate, the other five affidavits are from attorneys who attest to practicing social
security law, so the court focuses on the rate information they provide without
relying on Sutterfield’s affidavit.
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briefs is less experienced than the more senior attorneys on whose affidavits Abhsie
relies in his motion. (R. 28, Govt.’s Resp. at 1-2.) According to the government, the
affidavits “do nothing to support justifying an increase in [the] hourly rate” because
the junior attorney “does not possess reasonably comparable skill, experience, and
reputation.” (Id. at 2 (internal quotation marks omitted).) The government further
contends that Attorney Schultz’s statement that he charges $200 per hour for
attorneys with less experience is insufficient to establish the market rate for
inexperienced attorneys. (Id.)
Given the Seventh Circuit’s guidance in Sprinkle, the court finds that the
inflation-adjusted rate of $195.73 is appropriate in this case. First, the Seventh
Circuit has made clear that courts should generally award the inflation-adjusted
rate to be “consistent with the goal of keeping EAJA fee proceedings relatively
simple,” and the court finds no reason for departure here. See Sprinkle, 777 F.3d at
428. The government argues that a more experienced attorney could have written
the briefs in this case more quickly than a less experienced attorney. (R. 28, Govt.’s
Resp. at 2.) But courts can address potential inefficiency by examining whether the
number of hours expended is reasonable given the facts of the case, a related but
separate inquiry from determining whether the requested hourly rate is justified.
As for the government’s argument that it should not have to “subsidize [the
attorney’s] training,” (R. 28, Govt.’s Resp. at 2), the itemized time records in this
case do not appear to include time spent on background training or purely
educational endeavors unrelated to Abhsie’s claim.
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Rather, they show that the
billed-for tasks were directly related to the development of Abhsie’s case.
(See
R. 25-1, EAJA Itemization of Time.)
Second, while claimants must still produce evidence that the requested rate
is “in line with those prevailing in the community for similar services by lawyers of
comparable skill and experience[,]” the court in Sprinkle also stated that “a district
court might find, in its discretion, a single sworn statement from a claimant’s
attorney, setting forth the prevailing market rate” to be sufficient. 777 F.3d at 42829. Here, Abhsie has submitted multiple affidavits from other attorneys along with
affirmation from his own attorney to show that the requested rate is “in line” with
those prevailing in the community. The government makes much of the fact that
the affidavits are from seasoned practitioners, while the attorney who did the bulk
of the drafting in this case is less experienced. (R. 28, Govt.’s Resp. at 2.) To
support its argument, the government cites to the Illinois ARDC’s web site showing
that the drafting attorney was admitted to practice in December 2016. (Id. at 1.)
Yet the Seventh Circuit found affidavits not only very similar to, but in some
instances exactly the same as, the ones submitted in this case to be “more than
sufficient” in similar circumstances.
See Sprinkle, 777 F.3d at 423-24, 428-29;
compare Sprinkle, No. 09 CV 5042, Dkt. No. 22, Exs. D, E, F, & G, with (R. 25-4, 6,
7, 9). In fact, it appears that the attorney who did most of the drafting and research
for the claimant’s initial briefs in Sprinkle was also admitted to practice in Illinois
only one year before he began working on that case. See Sprinkle v. Colvin, No. 09
CV 5042, Dkt. No. 22, Ex. C (listing hours for Attorney Cody Marvin beginning in
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December 2009); Lawyer Search: Attorney's Registration and Public Disciplinary
Record
for
Cody
Thomas
Marvin,
available
at
http://www.iardc.org/ldetail.asp?id=481629696 (last visited Oct. 24, 2017) (showing
admission to the Illinois bar in November 2008).4
The attorney’s relative
inexperience did not prevent the Seventh Circuit in Sprinkle from finding that
similar affidavits to those submitted here were enough to support a finding that the
proposed rate was acceptable. See Sprinkle, 777 F.3d at 428-29. For these reasons,
the court finds that the requested rate of $195.73 per hour of attorney work is
justified in this case.
B.
Number of Hours
The court also finds that the total number of hours billed (62.85 hours) is
reasonable.
The government again points to the junior attorney’s relative
inexperience to argue that even halving his hours would not compensate for the fact
that a more senior attorney could work more efficiently. (R. 28, Govt.’s Resp. at 2.)
But the court has found similar hour totals to be reasonable, especially where, as
here, the case involves a voluminous record (1,670 pages) and is more complex
procedurally. See, e.g., Cummings v. Berryhill, No. 14 CV 10180, 2017 WL 926766,
at *2 (N.D. Ill. March 8, 2017) (“The standard range for hours worked on Social
Security litigation in the Seventh Circuit is 40-60 hours.” (internal quotation marks
and citation omitted)); Sturdivant v. Colvin, No. 12 CV 8186, 2014 WL 1557639, at
The court may take judicial notice of information from attorney registration and
disciplinary bodies, including their internet databases. See United States v.
Yarrington, 838 F. Supp. 2d 832, 835 n.1 (C.D. Ill. 2012); see also Fed. R. Evid.
201(b).
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*3 (N.D. Ill. April 18, 2014) (awarding fees for 68.3 billed hours); Taloff v. Colvin,
No. 12 CV 01696, 2014 WL 868040, at *3 (N.D. Ill. March 5, 2014) (awarding
approximately 65 hours of work for a 796-page record). This is not to suggest that
an award is justified merely because the total number of hours expended falls
within a range that has been sustained in other cases. See Schulten v. Astrue,
No. 08 CV 1181, 2010 WL 2135474, at *6 (N.D. Ill. May 28, 2010). However, in this
instance the court finds that 62.85 hours of attorney time to be reasonable.
Abhsie’s attorney also represents that he spent 3.5 hours drafting the reply
brief for the current motion. (R. 29, Pl.’s Reply at 6.) The court finds this amount of
time to be reasonable.
At the requested hourly rate of $195.73, the time the
attorney spent drafting the reply brief results in a supplemental fee of $685.05.
Conclusion
For the foregoing reasons, Abhsie’s motion for an award of fees and costs is
granted in the amount of $13,567.17.
ENTER:
____________________________________
Young B. Kim
United States Magistrate Judge
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