Cooke v. Berryhill
Filing
37
MEMORANDUM Opinion and Order: For the reasons set forth in the attached Opinion, Plaintiff's motion for attorney's fees and costs 27 is granted. Signed by the Honorable Lisa A. Jensen on 9/17/2020. mailed notice (jkd, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Laurel C.,
Plaintiff,
v.
Andrew Saul,
Commissioner of Social Security,
Defendant.
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No. 18 CV 50196
Magistrate Judge Lisa A. Jensen
MEMORANDUM OPINION AND ORDER
Plaintiff has moved for attorney’s fees and costs pursuant to the Equal Access to Justice
Act (“EAJA”), 28 U.S.C. §§ 2412(a), (d). Dkt. 27. For the following reasons, Plaintiff’s motion is
granted.
I. BACKGROUND
Plaintiff filed an application for disability insurance benefits in October 2014, which was
denied by an administrative law judge (“ALJ”) in April 2017. Plaintiff appealed the ALJ’s
decision, and in November 2019 this Court remanded the case, finding error in the vocational
expert’s vague or ambiguous answer that contained sufficient warning signs to trigger the ALJ’s
independent duty to investigate.
Plaintiff filed a motion for attorney’s fees pursuant to the EAJA, seeking an award of
$6,817.89 in attorney fees and $400 in costs. Dkt. 27 at 3. This request is based on an hourly rate
between $201.98 and $206.49 for time billed between May 2018 and January 2020. Dkt. 26-3. The
Commissioner responded that, while it does not contest the entitlement to the fees and costs, it
contests the unreasonableness of Plaintiff’s fee request. Dkt. 29 at 1. After the original motion was
fully briefed, this Court found that Plaintiff failed to provide the requisite evidence to justify a
higher rate as required by the Seventh Circuit. See Sprinkle v. Colvin, 777 F.3d 421, 428 (7th Cir.
2015). Accordingly, this Court allowed Plaintiff to supplement her motion. Plaintiff has
supplemented her motion and the Commissioner has responded, so the motion is ripe for ruling.
II. DISCUSSION
The EAJA allows a “prevailing party” to receive attorney's fees for work performed in a
judicial proceeding challenging an administrative denial of social security benefits, “unless the
court finds that the position of the United States was substantially justified or that special
circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A).
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Here, Plaintiff is the prevailing party and her motion is timely. The Commissioner does not
dispute that Plaintiff is entitled to an award of fees and costs in this case. As referenced above, the
Commissioner focuses on the argument that Plaintiff’s request, namely the requested hourly rate
and number of hours expended, is unreasonable.
1. Reasonableness of requested rate
Plaintiff requests that the Court allow for an increase of the hourly rate to reflect the
National Consumer Price Index (“CPI”), accounting for the monthly changes. The Commissioner
makes two arguments against the hourly rate Plaintiff requests. First, the Commissioner argues
that Plaintiff has failed to justify an increase in the statutory $125 per hour cap established by the
EAJA. Second, the Commissioner argues that, should the cap be adjusted, it should be according
to the Midwest CPI, rather than the National CPI.
A. Justification for an increased rate
The EAJA contemplates the award of fees based upon “prevailing market rates for the kind
and quality of the services furnished” up to a presumptive cap of $125 per hour. Id. §
2412(d)(2)(A). However, that cap may be exceeded when the court determines that an increase in
the cost of living or a special factor justifies a higher fee.” Id. § 2412(d)(2)(A)(ii). In 2015, the
Seventh Circuit held that “[c]ourts should generally award the inflation-adjusted rate according to
the CPI, using the date on which the legal services were performed.” Sprinkle, 777 F.3d at 428.
However, while the CPI suffices as proof of an increase in the cost of living, claimants must still
provide evidence that their requested rate is “in line with those prevailing in the community for
similar services 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.
With respect to the issue of justifying an increase in the statutory cap, Plaintiff supports
her requested hourly attorney rates with two relevant pieces of evidence. These include a table
from the U.S. Bureau of Labor Statistics of the CPI for All Urban Consumers, Dkt. 26-4, and an
affidavit from Attorney Stephanie Seibold stating $250 is a reasonable hourly rate for federal
services, and that she typically charges between the Midwest CPI and National CPI for EAJA fees.
Dkt. 33-1. The Commissioner argues that, absent Plaintiff’s attorney’s own affidavit, it is
impossible to demonstrate whether she is of reasonably comparable skill, experience, and
reputation to Ms. Seibold. Dkt. 36 at 2. The Commissioner also points out that, while Ms. Seibold
has appeared in 165 Social Security cases since 2014, Plaintiff’s attorney has appeared in seven,
which further demonstrates a lack of comparability between the two. Id.
In Abhsie v. Berryhill, No. 16 CV 7357, 2017 WL 4804741 (N.D. Ill. Oct. 25, 2017), the
Commissioner made a similar argument. There, the Commissioner took issue with the fact that the
affidavits the plaintiff submitted showing that the requested rate was “in line” with those prevailing
in the community had come from other attorneys who were more “seasoned practitioners,”
compared to the claimant’s attorney who was significantly less experienced. Id. at *2. The Abhsie
court noted that the Seventh Circuit in Sprinkle had found similar affidavits from more experienced
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practitioners “more than sufficient” to support a finding that the proposed rate was acceptable
despite the claimant’s attorney’s relative inexperience. Id. (citation omitted). The present case is
similar. Plaintiff’s counsel may be less experienced than the attorney who provided an affidavit,
but the Seventh Circuit’s ruling in Sprinkle demonstrates that this does not preclude Plaintiff’s
counsel from receiving a similar rate under the EAJA. Moreover, the Seventh Circuit stated that
“[a]n affidavit from a single attorney testifying to the prevailing market rate in the community”
may suffice to meet the burden of “proof that the requested rate does not exceed the prevailing
market rate in the community for similar services by lawyers of comparable skill and experience.”
Sprinkle, 777 F.3d at 423 (emphasis added). Accordingly, the Court finds that an increased hourly
rate would be justified for Plaintiff’s attorney in this case.
B. CPI standard
Regarding the issue of applying either the Midwest or National CPI, Plaintiff’s only
argument is that it is within the Court’s discretion to utilize the National, rather than the Midwest,
CPI when assessing the billable rate because there is no set standard. Dkt. 31 at 2. The
Commissioner concedes that the Seventh Circuit has not required district courts to adopt one CPI
over another. Dkt. 29 at 3. The Commissioner nonetheless argues that this Court should apply the
Midwest CPI and supports this argument with two points. First, the Commissioner relies on
Jacquelyn D. v. Berryhill, No. 16-11434, 2019 WL 2327620, at *2 (N.D. Ill. May 31, 2019), and
points out that the court cited only one case that utilized the National CPI but cited three cases that
used the regional CPI. Dkt. 29 at 3. Second, the Commissioner argues that the statute’s language
mandates use of a regional CPI. Id. at 4.
The Court finds the Commissioner’s first point to be unpersuasive. The Commissioner
seems to imply, based on a few cases cited by one court, that most courts would utilize the Midwest
CPI. However, based on this Court’s research, numerous courts within the Seventh Circuit that
have recently analyzed the CPI issue have decided to use the National CPI, finding that the national
measure results in a fee award more in line with the prevailing market rate. Cummings v. Berryhill,
No. 14 CV 10180, 2017 WL 926766, at *3 (N.D. Ill. Mar. 8, 2017) (collecting cases). In response
to the Commissioner’s point concerning the statutory language, this Court finds that the language
of the EAJA supports use of the National CPI. In Jensen v. Berryhill, 343 F. Supp. 3d 860 (E.D.
Wis. 2018), the court pointed out that the statute “created a uniform, nation-wide cap of $125/hour,
notwithstanding the obvious fact that the cost-of-living and the prevailing market rate for legal
services vary greatly on a regional and local level throughout the United States.” Id. 865 (internal
citation and quotation marks omitted). Therefore, it would be strange to interpret the EAJA, which
has a nationwide application with an expressly set out uniform standard, to devolve thereafter into
a local, varying standard. Id. Moreover, that court noted that, “[e]ven if a regional CPI would best
reflect the ‘prevailing market rate’ for certain matters, social security cases seem to be different.”
Id. at 866. Based on the Court’s discretion and the reasons stated, the Court concludes that applying
the National CPI is appropriate.
Plaintiff has presented calculations based on the CPI-U, which has been approved by the
Seventh Circuit and is frequently used in this district, e.g., Spraggins v. Berryhill, No. 16 C 7304,
2018 WL 661553, at *2 (N.D. Ill. Feb. 1, 2018), along with an affidavit from an experienced
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practitioner that the fee sought is appropriate. The Court finds that this is sufficient to justify the
requested rate under Sprinkle, 777 F.3d at 428-29.
2. Reasonableness of hours expended
The Commissioner argues that the number of hours for which Plaintiff seeks
reimbursement is unreasonable, yet also admits that he “is ‘nit-picking’ plaintiff’s time records.”
Dkt. 29 at 7. The Commissioner first takes issue with Plaintiff’s attorney’s billing increment. Dkt.
29 at 7-8. However, Plaintiff’s counsel’s method of billing is not barred by the EAJA, nor is there
another statutory provision forbidding billing in quarter-hour segments. See Schulten v. Astrue,
No. 08 C 1181, 2010 WL 2135474, at *2 (N.D. Ill. May 28, 2010). Accordingly, the Court
concludes that the billing increment used is reasonable.
The Commissioner then criticizes as excessive various amounts of time Plaintiff’s counsel
recorded for specific tasks. Dkt 29. at 8-10. Plaintiff responds that, for certain tasks, the length was
due to the Government shutdown that occurred during the pendency of this case, as she had to
review uncommon orders and engage in extra communication relating to that issue. Dkt. 31 at 3.
Plaintiff also, for several of the Commissioner’s complaints, provided an explanation of her
counsel’s work procedures to justify the time spent. Dkt. 31 at 3-4.
Ultimately, the Court finds that the Commissioner was hyper-critical in its analysis,
especially given the reasonable explanations provided by Plaintiff’s counsel. Moreover, Plaintiff
requests a total of 33.5 hours, which courts in this circuit would consider to be reasonable, and
perhaps even low, for a social security appeal. See Spraggins, 2018 WL 661553, at *1 (N.D. Ill.
Feb. 1, 2018) (stating that courts in the district routinely held that spending 40 to 60 hours on a
social security appeal is reasonable); Bohannon v. Colvin, No. 2:15-CV-111-JEM, 2017 WL
192334, at *2 (N.D. Ind. Jan. 18, 2017) (finding that the standard range of total hours work on
social security litigation in the Seventh Circuit is 40-60 hours); Schulten, 2010 WL 2135474, at *6
(N.D. Ill. 2010) (finding the permissible range to be, generally speaking, 40 to 60 hours).
Therefore, the Court finds that Plaintiff’s requested hours are reasonable and reimbursable.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for attorney’s fees is granted. The Court
orders that Plaintiff is awarded $6,817.19 in attorney’s fees and $400 in costs, for a total amount
of $7,217.19 pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412.
Date: September 17, 2020
By:
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___________________________
Lisa A. Jensen
United States Magistrate Judge
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