Coleman v. Commissioner of Social Security

Filing 36

ORDER granting 28 Motion for Attorney Fees. Signed by Magistrate Judge Clifford J. Proud on 11/4/2016. (jmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KYLE R. COLEMAN,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Defendant.

Civil No. 13-cv-524-CJP

MEMORANDUM AND ORDER
PROUD, Magistrate Judge:
This matter is before the Court on plaintiff’s Motion for Attorney’s Fees
Under the Equal Access to Justice Act. (Doc. 28). Defendant filed a response in
opposition at Doc. 32, plaintiff filed a reply at Doc. 33 and supplemented his
response 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
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prevailing party. See, Shalala v. Schaefer, 509 U.S. 292, 302 (1993).
In her response to the motion, the Commissioner argues the Court should
not award fees because the government’s position was substantially justified and
plaintiff’s fees sought are unreasonable.
1. Substantially Justified
The EAJA does not define the term “substantially justified,” and the
Seventh Circuit has recognized that its meaning in this context is not “selfevident.” U.S. v. Thouvenot, Wade & Moerschen, Inc., 596 F.3d 378, 381 (7th
Cir. 2010). However, in view of the purpose of the Act, substantially justified
means something more than “not frivolous;” the government’s position “must have
sufficient merit to negate an inference that the government was coming down on
its small opponent in a careless and oppressive fashion.” Id., at 381-382.
The government’s position is substantially justified where it had a
“reasonable basis in law and fact, that is, if a reasonable person could believe the
position was correct.” Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir.
2004)(internal citations omitted). The Commissioner bears the burden of
demonstrating that her position was substantially justified, and the Court must
make a determination based on an assessment of both the government’s prelitigation and litigation conduct, including the decision of the ALJ. Ibid.
The evidence in the administrative record and the specifics of the ALJ’s
decision are discussed in detail in the Memorandum and Order remanding the
case, Doc. 26.

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Plaintiff argued that the ALJ failed to consider and evaluate important
medical evidence, the ALJ’s credibility determination was erroneous, the ALJ
erred in determining plaintiff’s RFC, and the ALJ erred in not giving appropriate
weight to the opinions of his primary care physician. This Court found merit in all
four of plaintiff’s arguments.
This Court concluded that the ALJ’s review of the medical evidence was
highly selective and undermined his findings as to plaintiff’s credibility, the weight
he afforded plaintiff’s treating physician, and his ultimate findings as to plaintiff’s
RFC. The Commissioner characterizes the ALJ’s errors “errors of articulation”
and argues they do not necessitate a finding that the government’s position was
not substantially justified, Doc.32, p. 4. The Commissioner cites Stein v.
Sullivan, 966 F.2d 317, 319-320 (7th Cir. 1992), in support of this argument.
However, Stein did not establish a per se rule that attorney’s fees will not be
awarded whenever the error was a failure to meet the articulation requirement.
See, Conrad v. Barnhart, 434 F.3d 987, 991 (7th Cir. 2006).
This Court recognized that the Commissioner’s arguments in this case were
perfunctory. It is now difficult to accept her argument that her position was
substantially justified when she failed to justify it in her merits brief. The Court
finds that the Commissioner’s position was not substantially justified, and
therefore finds that plaintiff is entitled to an award of attorney’s fees under the
EAJA.
2. Unreasonable Fees

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The Commissioner argues that both the hourly rate and the number of hours
plaintiff’s counsel claims are unreasonable.
As to the hourly rate, counsel asks the Court to award him $187.50 per hour
for attorney time and $75.00 per hour for legal assistant time. The Commissioner
states that attorneys representing claimants in social security cases are allowed a
maximum of $125 per hour per the EAJA. She cites Mathews-Sheets v. Astrue
which stated “The $125 rate is a presumptive ceiling; to justify a higher rate the
plaintiff must point to inflation or some other special factor.” 653 F.3d 560, 563
(7th Cir. 2011).
In citing Mathews-Sheets, the Commissioner fails to acknowledge the Seventh
Circuit’s more recent case, Sprinkle v. Colvin, 777 F.3d 421 (7th Cir. 2015),
which created a new standard for attorney’s fees in this circuit. In Sprinkle, the
Court clarified that EAJA claimants that seek inflation-based rate adjustments do
not need to prove the “effects of inflation on the particular attorney’s practice” and
do not need to prove “that no competent attorney could be found for less than the
requested rate.” Id. at 423. Instead, a claimant can rely upon a “general and
readily available measure of inflation such as the Consumer Price Index [CPI].” Id.
“An affidavit from a single attorney testifying to the prevailing market rate in the
community may suffice to meet that burden.” Id.
This does not make a fee increase automatic because the government can still
raise evidence that the CPI does not provide an accurate measure of the cost of
living in a certain market. Id. The claimant must also supply “satisfactory

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evidence” that the “rate they request is in line with those prevailing in the
community for similar services by lawyers of comparable skill and experience.”
Id. A district court may, “in its discretion” find one sworn statement from the
claimant’s attorney as sufficient for this purpose. Id. at 429.
The Court finds the requested figure of $187.50/hour appropriately calculated
through the CPI, and accepts the affidavit of lead counsel, David Sutterfield, as
sufficient to show this rate is in line with the prevailing market rate. This rate is
similar to what other judges in this Circuit have approved since Sprinkle. See,
e.g., Trump v. Colvin, 2015 WL 970111 at *3, 4 (N.D.Ill.2015); Smith–
Harvey v. Colvin, 2015 WL 1548955 at *2 (S.D.Ind.2015); Embry v. Colvin,
No. 12 C 3685, 2015 WL 4720106, at *4 (N.D. Ill. Aug. 4, 2015)
Plaintiff contends the number of hours his counsel and his support staff
expended on the case, approximately 68.91, is reasonable and the court has the
discretion to award fees for those hours. There is no per se rule for capping
hours, instead the Court must analyze if the hours are “reasonably expended.” It
is an attorney’s responsibility to use “billing judgment” because “hours that are
not properly billed to one’s client also are not properly billed to one’s adversary
pursuant to statutory authority.” Hensley v. Eckerhart, 461 U.S. 424, 433–434
(1983). To determine if hours are reasonably expended, factors like novelty and
difficulty of the questions, the skill required to perform the legal service, and the
customary fee are taken into consideration. Id. at 434.
The Commissioner argues that plaintiff’s case was “relatively routine” and the

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issues raised in plaintiff’s brief on the merits were neither new nor novel. Further,
she argues that plaintiff’s brief “primarily cited well-established case authority for
legal propositions that were neither unusual nor particularly complex.” Doc. 32,
p. 8. The Commissioner contends that with plaintiff’s counsel’s experience, 31.25
hours drafting plaintiff’s initial motion and memorandum, 21.7 hour drafting a
reply, and 7 hours drafting an EAJA petition were excessive.
The Commissioner is correct that plaintiff’s counsel routinely raises the issues
he raised in this case in other Social Security cases. However, this does not
support the idea that plaintiff’s counsel put little or no work effort into this case.
Further, the Court agrees with plaintiff that classifying a case as “typical” does not
mean plaintiff is not entitled to fair compensation for the time his attorney spent
advocating on his behalf.
The Court notes that 68.91 hours is not completely outside the realm of
reasonableness for a social security disability case. See, e.g., Porter v.
Barnhart, No. 04 C 6009, 2006 WL 1722377, at 4 (N.D. Ill. June 19, 2006)
(awarding 88.2 hours of attorney's fees). The evidentiary record in this case was
almost 700 pages long, and plaintiff’s counsel spent 13 pages addressing the
nature and scope of the evidence as it related to the ALJ’s decision. Plaintiff’s
counsel claims he spent 31.25 hours drafting the motion for summary judgment
and supporting memorandum. This is understandable considering he did not also
claim additional time spent analyzing the record. Further, spending 7 hours on
the EAJA briefs is understandable since plaintiff had to obtain affidavits from

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other attorneys, research, draft, submit, and submit a supplemental brief in light
of Sprinkle.
The Court notes that 68.91 hours is considered to be on the “high end of the
range of hours that courts within this circuit have considered reasonable for
social security appeals.” Schulten v. Astrue, 2010 WL 2135474, at *6
(N.D.Ill.2010)(finding the “permissible range” to be, “generally speaking” 40
to 60 hours). However, as plaintiff’s counsel notes, there are many cases where
comparable or greater hours have been awarded. 1
For the reasons discussed above, plaintiff’s Motion for Attorney’s Fees
Under the Equal Access to Justice Act (Doc. 28) is GRANTED.
The Court awards attorney’s fees in the amount of $12,537.50 (twelve
thousand five hundred and thirty-seven dollars and fifty cents).
The amount awarded is payable to plaintiff and is subject to set-off for any
Claiborne ex rel. L.D. v. Astrue, 877 F. Supp. 2d 622, 624 (N.D. Ill. 2012), where the hourly
time spent by the attorney was not contested (Plaintiff has submitted invoices showing that her
attorneys worked a total of 73.1 hours, including time spent preparing the fee petition and
reply brief. Specifically, Barry Schultz worked 24.6 hours; Lauren Rafferty worked 35.9 hours;
and Julie Coen worked 12.6 hours. Two legal assistants worked an additional 1.3 hours.) (Doc.
45–3; Doc. 49, at 15 n. 10); Bias v. Astrue, 11 C2247, 2013 WL 615804, *1 (N.D. Ill. Feb. 15,
2013) (Plaintiff has submitted an “EAJA Itemization of Time” showing that his counsel worked
a total of 64 hours. The legal assistants worked an additional 1.9 hours); Spaulding vs. Astrue,
08 C 2009, 2011 WL 1042580, *3 (N.D. Ill. Mar. 22, 2011) (55 hours of attorney time at a rate
of $170 an hour ($9,350), and 2.7 hours of legal assistant time at a rate of $85 an hour
($229.50); Scott v. Astrue, 08 C 5882, 2012 WL 527523, *5 (N.D. Ill. Feb. 16, 2012)(59.6 hours
in the district court for Ms. Scott's initial claim held to be proper); Schulten v. Astrue, 08 C
1181, 2010 WL 2135474, *6 (N.D. Ill. May 28, 2010) “The requested number of hours—48.75—
is within the permissible range for cases like this, which is, generally speaking, 40 to 60 hours.
See Nickola v. Barnhart, 2004 WL 2713075, *2 (W.D.Wis. Nov.24, 2004)(roughly 60 hours of
combined law clerk and attorney time it took to produce plaintiff's briefs was not excessive);
Holland v. Barnhart, 2004 WL 419871, *2 (N.D.Ill. Feb.3, 2004)(56.85 hours devoted to the
preparation of “three briefs, totaling 48 pages” not unreasonable); Anderson v. Barnhart, 2006
WL 4673476, *5 (N.D.Ill. Feb.9, 2006)(38.9 hours spent on brief and reply “unextraordinary”);
Cuevas v. Barnhart, 2004 WL 3037939, *2 (N.D.Ill.2004) (56.5 hours of attorney work found
reasonable); Taylor v. Barnhart, 2004 WL 1114783, *3 (N.D.Ill. May 14, 2004) (51 hours of
attorney work found reasonable).

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debt owed by plaintiff to the United States, per Astrue v. Ratliff, 130 S.Ct. 2521
(2010). However, any amount that is not used to satisfy an outstanding debt shall
be made payable to plaintiff’s attorney.
IT IS SO ORDERED.
DATE: November 4, 2016.
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE

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