Pearl v. Commissioner of Social Security

Filing 38

ORDER granting in part and denying in part 30 Motion for Attorney Fees. Signed by Magistrate Judge Clifford J. Proud on 4/24/2013. (jmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL PEARL ,

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Plaintiff,
vs.
COMMISSIONER of SOCIAL SECURITY,
Defendant.

Civil No. 12-cv-208-CJP

MEMORANDUM AND ORDER
PROUD, Magistrate Judge:
This matter is before the Court on plaintiff’s Amended Application for Award of
Attorney Fees Pursuant to the Equal Access to Justice Act. (Doc. 30). Defendant filed a
response in opposition at Doc. 35.
Pursuant to the Equal Access to Justice Act, 28 U.S.C. §2412(d)(1)(A), the Court shall
award attorney’s fees and expenses to a prevailing party in a civil action against the United
States, including proceedings for judicial review of agency action, unless the government’s
position was substantially justified. The hourly rate for attorney’s fees is not to exceed $125.00
per hour “unless the court determines that an increase in the cost of living or a special factor,
such as the limited availability of qualified attorneys for the proceedings involved, justifies a
higher fee.” §2412(d)(2)(A).
This case was remanded to the Commissioner for further proceedings pursuant to
sentence four of 42 U.S.C. §405(g). Plaintiff is, therefore, the prevailing party. See, Shalala v.
Schaefer, 509 U.S. 292, 302 (1993). The Commissioner does not argue that her position was
substantially justified so as to defeat plaintiff’s claim under the EAJA. She does, however, take
issue with the hourly rate claimed by counsel.
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Counsel for plaintiff asks the Court to award her $184.29 per hour for a total of 30.35
hours. Counsel argues that she is entitled to an increase from the statutory rate of $125.00 per
hour because of an increase in the cost of living and a “special factor” within the meaning of
§2412(d)(2)(A).
In her memorandum in support, Doc. 31, counsel argues that the statutory rate should be
increased to reflect the fact that there has been a general increase in the cost of living since the
implementation of the statute. She relies on the fact that the Social Security Administration
adjusts the amount paid to beneficiaries to keep pace with inflation by using data from the
Bureau of Labor Statistics. She argues that the same data should be used to adjust the hourly fee
paid to attorneys.
Counsel’s argument has some intuitive appeal, but it is foreclosed by the Seventh Circuit
Court of Appeals’ decision in Mathews-Sheets v. Astrue, 653 F.3d 560 (7th Cir. 2011). The
Court specifically rejected counsel’s argument:
If [counsel] points to inflation he still must show that it actually justifies a higher
fee; for while it might seem obvious that a statutory price ceiling should be raised
in step with inflation, to do that as a rote matter would produce windfalls in some
cases. Inflation affects different markets, and different costs in the same market,
in different ways. The framers of the Equal Access to Justice Act were right
therefore not to create an entitlement to an inflation adjustment; the lawyer
seeking such an adjustment must show that inflation has increased the cost of
providing adequate legal service to a person seeking relief against the
government.
Mathews-Sheets, 653 at 563.
The Court went on to explain that an adjustment in the hourly rate for inflation must be
“justified by reference to the particular circumstances of the lawyer seeking the increase.” Ibid.
at 563-564. Counsel cites to two surveys about the average hourly rate charged by attorneys.
These surveys are of little relevance to the precise issue at hand. No information has been

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presented from which the Court could conclude that inflation has actually increased counsel’s
cost of providing legal services.
Counsel also argues that the hourly rate should be increased because of a special factor.
She limits her practice to representing claimants before the Social Security Administrating and in
the District Court. Citing Pierce v. Underwood, 487 U.S. 552, 572 (1988), she argues that she
was “qualified for the proceedings in some specialized sense” and that the availability of
qualified attorneys for these proceedings is limited.
Again, applicable precedent mandates that counsel’s argument be rejected. Applying
Pierce, supra, the Seventh Circuit has held that “the area of social security law cannot in itself be
considered such a specialized area of law practice as to warrant, as a general rule, payment in
excess of the [$125.00] rate.” Raines v. Shalala, 44 F.3d 1355, 1361 (7th Cir. 1995).
This Court holds that counsel for plaintiff has not demonstrated that she is entitled to an
increase in the statutory rate. Therefore, her fee will be calculated at the rate of $125.00 per
hour.
Counsel represents that she spent 30.35 hours working on this case. Defendant does not
challenge that figure. Therefore, the Court awards counsel of total fee of $3,793.75, representing
30.35 hours at a rate of $125.00 per hour.
Plaintiff’s Amended Application for Award of Attorney Fees Pursuant to the Equal
Access to Justice Act (Doc. 30) is hereby GRANTED in part and DENIED in part, as
explained above. The Court awards plaintiff a total of $3,793.75 as fees and costs. The Court
notes that plaintiff proceeded in forma pauperis, and therefore is not entitled to reimbursement of
the filing fee.

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The amount awarded is payable to plaintiff and is subject to set-off for any debt owed by
plaintiff to the United States, per Astrue v. Ratliff, 130 S.Ct. 2521 (2010).

However, in

accordance with the assignment executed by plaintiff (Doc. 31, Ex. 3), any amount that is not
used to satisfy an outstanding debt shall be made payable to plaintiff’s attorney.
IT IS SO ORDERED.
DATED: April 24, 2013.

s/ Clifford J. Proud
CLIFFORD J. PROUD
U.S. MAGISTRATE JUDGE

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