Inboden v. Colvin
Filing
35
ORDER granting 31 Motion for Attorney Fees. Signed by Magistrate Judge Clifford J. Proud on 4/5/2017. (klm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KIMBERLY INBODEN,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant. 1
Civil No. 14-cv-915-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. 31). Defendant filed a response in
opposition at Doc. 33 and plaintiff filed a reply at Doc. 34.
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).
1
Nancy A. Berryhill is now the Acting Commissioner of Social Security. See, Casey v. Berryhill, __ F3d. __, 2017
WL 398309 (7th Cir. Jan. 30, 2017). She is automatically substituted as defendant in this case. See Fed. R. Civ. P.
25(d); 42 U.S.C. §405(g).
1
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).
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 pre-litigation and litigation conduct, including the decision of the
ALJ. Id.
2
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. 29.
Plaintiff argued that the ALJ erred in not giving appropriate weight to the
physicians of record and the ALJ erred in assessing plaintiff’s residual
functional capacity (RFC). This Court found merit in plaintiff’s first point and
deferred ruling on the other point. This Court noted that the Commissioner
violated the Chenery doctrine by defending the ALJ’s decision on a ground that
the agency had not relied on within its decision. Doc. 29, p. 21; See, SEC v.
Chenery Corporation, 318 U.S. 80 (1943). The Court concluded, and the
Commissioner conceded, that the ALJ failed to properly analyze plaintiff’s
migraine condition. The Court determined that the ALJ’s reasons for rejecting
the treating physician’s opinions were not supported by the record and were
based on a highly selective review of the medical evidence.
The Commissioner characterizes the ALJ’s errors with regard to the treating
physician’s opinions as “errors of articulation” and argues they do not
necessitate a finding that the government’s position was not substantially
justified, Doc. 36, pp. 3-4. 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).
3
The Commissioner also argues that this Court did not use “strong language”
in its opinion and that the Court’s analysis and language used suggests the
case was remanded on relatively narrow grounds in relation to the agency’s
position as a whole. The Court agrees with plaintiff’s rebuttal that the Court
made it clear this was not a “close case.” The ALJ’s errors within his opinion
and the Commissioner’s errors within her arguments violated long-standing
legal precedent and as a result the Commissioner’s position cannot be
substantially justified. Pierce v. Underwood, 487 U.S. 552, 561 (1988);
Golembiewski, 382 F.3d at 724; Stewart v. Astrue, 561 F.3d 679, 684 (7th
Cir. 2009).
The Commissioner fails to advance arguments that show her position was
substantially justified as a whole. Gatimi v. Holder, 606 F.3d 344, 349-50
(7th Cir. 2010). She does not indicate how she had a rational ground for her
arguments nor does she substantiate her claims that a genuine dispute exited.
Therefore, the Court finds that plaintiff is entitled to an award of attorney’s fees
under the EAJA.
2. Unreasonable Fees
The Commissioner argues that the 56.2 hours her attorney expended on
this case were unreasonable. The Commissioner notably fails to state how
many hours she feels would be considered reasonable for the petitioner to
claim, just that the number of hours should be reduced.
Plaintiff contends the number of hours her counsel expended on the case is
reasonable and the court has the discretion to award fees for those hours.
4
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 the issues within the case were not complex
or novel and did not require 38 hours of work in reviewing the record and
drafting plaintiff’s opening brief. 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 her attorney spent advocating on her
behalf.
The Court notes that 56.2 hours is not completely outside the realm of
reasonableness for a social security disability case, albeit on the high end. 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). 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, there are many
5
cases where comparable or greater hours have been awarded. 2 The evidentiary
record in this case is over 1200 pages long. Plaintiff’s attorney itemized each of
the hours he spent reviewing the record and on each section of the brief, none
of the time seems unreasonable.
Finally, the Court looks at plaintiff’s request for an additional $678.62 for
the time spent on her reply brief for the current matter. Plaintiff’s attorney
claims he spent an additional 3.3 hours and his legal assistant spent .5 hours
on the response to the Commissioner’s response to her petition for attorney’s
fees. The Court notes that replying to the Commissioner’s response is
2
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).
6
completely voluntary and not required for the merits of the motion to be
reviewed. However, plaintiff had to do additional research on the issues
presented by the Commissioner within her response to plaintiff’s motion for
fees. As a result the Court finds plaintiff’s time spent preparing the reply
justified.
For the reasons discussed above, plaintiff’s Motion for Attorney’s Fees
Under the Equal Access to Justice Act (Doc. 31) is GRANTED.
The Court awards attorney’s fees in the amount of $11,452.67 (eleven
thousand four hundred and fifty-two dollars and sixty-seven cents).
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, any amount that is not used to satisfy an
outstanding debt shall be made payable to plaintiff’s attorney.
IT IS SO ORDERED.
DATE: April 5, 2017
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?