Fike v. Commissioner of the Social Security Administration

Filing 38

OPINION AND ORDER GRANTING 33 MOTION for Attorney Fees Under the Equal Access to Justice Act by Plaintiff Cecil W Fike. Attorney fees awarded in the amount of $9,171.81 as outlined in Order. Signed by Magistrate Judge Roger B Cosbey on 8/23/12. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
CECIL W. FIKE,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.

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CAUSE NO.: 1:11-CV-168

OPINION AND ORDER
Plaintiff Cecil Fike brought this suit to contest a denial of disability benefits by
Defendant Michael J. Astrue, Commissioner of Social Security. On April 10, 2012, this Court
entered an Opinion and Order, reversing the Commissioner’s denial of benefits and remanding
the case for further proceedings. (Docket # 28-32.)
Fike has now filed a motion to recover attorney fees in the amount of $9,171.81 under the
Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. (Docket # 33, 37.) Although the
Commissioner concedes that Fike is entitled to attorney fees as a prevailing party, it argues that
the amount of the fee request is unreasonable, both in the number of hours expended and the
requested hourly rate. (Docket # 36.) For the following reasons, Fike’s motion for award of
attorney’s fees will be GRANTED.
II. DISCUSSION
A. The Time Fike Spent Briefing This Case Was Reasonable
Fike moves for a total of $9,171.81 for 50.5 hours of work performed by her two
attorneys in federal court. (Docket # 33, 37.) The components of the fee request are as follows:

32 hours reading the administrative transcript, researching, and drafting the opening brief; 9.5
hours preparing the reply brief; and 9 hours prosecuting the case in federal court, including
preparing and defending the fee application. (Pl.’s Reply 4; see also Pl.’s Appl. for Att’ys Fees
Ex. C.)
Fike, as the fee applicant, has the burden of proving that the EAJA fees sought are
reasonable. See 28 U.S.C. § 2412(d)(1)(B); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).
Factors the Court should consider in evaluating the reasonableness of a fee request are:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3)
the skill requisite to perform the legal service properly; (4) the preclusion of
employment by the attorney due to acceptance of the case; (5) the customary fee;
(6) whether the fee is fixed or contingent; (7) time limitations imposed by the
client or the circumstances; (8) the amount involved and the results obtained; (9)
the experience, reputation, and ability of the attorneys; (10) the “undesirability”
of the case; (11) the nature and length of the professional relationship with the
client; and (12) awards in similar cases.
Hensley, 461 U.S. at 430 n.3.
In addition, “[h]ours that are not properly billed to one’s client are also not properly
billed to one’s adversary pursuant to statutory authority.” Id. at 434 (emphasis in original;
internal quotation marks and citation omitted). “As a result, the prevailing party should make a
good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise
unnecessary.” Davenport v. Astrue, No. 2:07-CV-0064-PRC, 2008 WL 2691115, at *7 (N.D.
Ind. July 3, 2008) (citing Hensley, 461 U.S. at 434). “The amount of a fee award is left to the
discretion of the district court because of its ‘superior understanding of the litigation and the
desirability of avoiding frequent appellate review of what essentially are factual matters.’” Id.
(quoting Hensley, 461 U.S. at 437).
Here, the Commissioner alleges that the amount of time Fike spent on this case was
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excessive, considering that it involved only four issues and the transcript was just 443 pages in
length. (Resp. 6-7.) In particular, the Commissioner criticizes Fike for spending 32 hours on the
opening brief alone, unnecessarily researching medical and “basic and common Social Security
law principles,” citing cases from other district and circuit jurisdictions, including too many
single-spaced quotations and 90 footnotes, and spending too much time revising the brief. (Resp.
6-7.)
Fike acknowledges that his opening brief was indeed thorough, incorporating various
medical research and many legal citations. (Reply 4-5.) Yet he further emphasizes, and rightly
so, that the opening brief was quite successful in securing a decision in his favor, as it
necessitated the filing of only a 7-page reply brief. (Reply 4-5.) In fact, the Commissioner does
not point to any specific arguments that Fike could have omitted from the opening brief.
Admittedly, the issues Fike challenged in this case—the ALJ’s consideration of a treating
physician’s opinion and his credibility determination—are not particularly novel, but they are
multi-faceted and require a close and careful analysis of the record. See, e.g., Dominguese v.
Barnhart, No. 99-C-0596, 2002 WL 32318281, at *6 (E.D. Wis. July 12, 2002) (finding that the
43.3 hours plaintiff spent drafting briefs was reasonable where the central issue was the
sufficiency of the ALJ’s credibility assessment). “To explicate the errors in the ALJ’s
assessment, plaintiff’s counsel had to address each category, find and point to contrary evidence
in the record, dissect the logic of the ALJ’s conclusion and, in some instances, demonstrate how
the ALJ failed to comply with required Social Security regulations and rulings and caselaw.” Id.
Moreover, Fike correctly observes that the total amount of time his attorneys spent on this
case, 46.7 hours (exclusive of the 3.8 hours spend on the fee application) is well within the range

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of hours that this Court has considered reasonable for social security appeals. See, e.g., Snider v.
Astrue, No. 1:08-cv-53, 2009 WL 1766925, at *5 n.3 (N.D. Ind. June 23, 2009) (concluding that
54.50 hours of work on appeal was reasonable and in line with other Social Security cases in the
circuit); see also Dominguese, 2002 WL 32318281, at *6 (collecting cases where fee awards from
53.5 to 66.95 hours of work in a Social Security appeal were considered reasonable).
Consequently, the 32 hours that Fike’s attorneys spent on his opening brief, the 9.5 hours spent on
the reply brief, and the 9 hours spent on preparing and defending the fee applications, will not be
reduced.
B. Fike’s Requested Enhanced Hourly Rate Is Reasonable
The Commissioner also asserts that Fike’s requested enhanced hourly rate, $181.62, is
improper, contending that it should have been calculated with the cost of living increase for the
“Midwest Urban” average of the Consumer Price Index, resulting in $177.68 hourly rate, rather
than the “All Urban” index.1 The Commissioner’s argument on this front, however, is
unpersuasive.
The EAJA provides that “attorney fees shall not be awarded in excess of $125 per hour
unless the court determines that an increase in the cost of living or a special factor . . . justifies a

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In addition, the Commissioner argues that Fike has not met his burden of showing that an enhanced hourly
rate is even justified. (Def.’s Resp. 2-3.) Indeed, if a claimant “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.” Matthews-Sheets v. Astrue, 653 F.3d
560, 563 (7th Cir. 2011). Therefore, “[a]n inflation adjustment must . . . be justified by reference to the particular
circumstances of the lawyer seeking the increase.” Id. at 563-64.
Here, Fike simply represents that the requested rate of $181.62 is “far lower than the actual market rates for
[his] lawyers.” (Pl.’s Appl. for Att’ys Fees 3.) While this is a rather lackluster showing on Fike’s part, the Court
nonetheless finds it sufficient to justify a cost of living enhancement, considering that Fike’s requested hourly rate is
consistent with the enhanced hourly rate the undersigned Magistrate Judge has often awarded to one local,
experienced social security litigator. See, e.g., Lewis v. Comm’r of Soc. Sec., 1:10-cv-171, 2011 WL 5025228 (N.D.
Ind. Oct. 21, 2011) (awarding $10,403.75 in EAJA fees based on 59.45 hours of legal work at $175 per hour).

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higher fee.” 28 U.S.C. § 2412(d)(2)(A)(ii). Here, Fike explains that the hourly rate of $181.62 is
based on the change in the cost of living from March 1996, the base rate mentioned in the
statutes, through November 2011, which is “when most of the substantive work in this case was
done.” (Pl.’s Appl. for Att’ys Fees 3 n.5.) He further explains that the increase in the cost of
living was determined by taking the current index for “All Urban Consumer’s (CPI-U), all items
(Entire Country)” for November 2011, obtained from the Bureau of Labor Statistics, and divided
that by the same index for March 1996 and multiplied it by $125 per hour.
The Commissioner contends, however, that Fike should have used the “Midwest Urban”
average of the Consumer Price Index to calculate the hourly rate rather than the “All Urban”
index, thereby measuring the increase in cost of living on a regional basis rather than a national
basis. It explains that this would reduce Fike’s requested hourly rate by $3.94, that is, from
$181.62 to $177.68.
In that regard, it appears that district courts in the Seventh Circuit have permitted the use
of either the national or regional index, provided that plaintiff’s counsel justifies the increased
rate that he seeks. Compare Simms v. Astrue, No. 2:08-cv-00094-PRC, 2009 WL 1659809, at *7
(N.D. Ind. June 12, 2009) (calculating the cost of living increase by using a regional index); and
Fenn v. Bowen, No. 85 C 10283, 1988 WL 124137, at *4 (N.D. Ill. Nov. 15, 1988) (same), with
Hampton v. Astrue, No. 06-cv-477-DRH, 2008 WL 2090728, at *2 n.1 (S.D. Ill. May 15, 2008)
(calculating the cost of living increase by using the “All Urban” index); and Uphill v. Barnhart,
271 F. Supp. 2d 1086, 1096-97 (E.D. Wis. 2003) (same). Indeed, as at least one other district
court has noted, it is not particularly clear in this Circuit “[w]hich of the Consumer Price Indexes
is more appropriate.” Simms, 2009 WL 1659809, at *7.

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Here, Fike adequately explains how the cost of living increase was calculated from the
information obtained from the Bureau of Labor Statistics. (Pl.’s Appl. for Att’ys Fees 3, Ex. B);
see, e.g., Koschnitzke v. Barnhart, 293 F. Supp. 2d 943, 953 (E.D. Wis. 2003) (“[Counsel]
justifies the increase by applying the Bureau of Labor Statistics ‘all items’ Consumer Price Index
(‘CPI-U’), calculating the increase from 1996, when the maximum rate of $125 was set, to [the
date the work was performed]. The CPI-U is an acceptable source for calculating an increase in
the cost of living.”). Furthermore, at least one experienced, local attorney representing claimants
in social security appeals has consistently been using the “All Urban” index to compute the cost
of living increase for EAJA fees before this Court for at least five years.2 Moreover, in this
instance the difference in the hourly rates amounts to only $3.94, a relatively nominal amount.
Therefore, considering that Fike has adequately justified his request for an increased
hourly rate and the lack of clarity in the case law concerning the appropriate cost of living index,
Fike’s request for the award of attorney fees will be granted as calculated at $181.62 per hour.
III. CONCLUSION
For the foregoing reasons, Plaintiff’s Application for Attorneys’ Fees (Docket # 33) in the
amount of $9,171.81 is GRANTED. The EAJA award is payable to Fike; however, in the event
the Commissioner verifies that all due and lawful offsets for indebtedness that Fike may owe to
the United States have been accounted for, the Commissioner shall pay the award to Attorney
Forbes pursuant to the assignment between Forbes and Fike. (Opening Br. Ex. A.) Attorney

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See, e.g., Mem. in Supp. of Mot. for Award of Att’ys Fees, Landez v. Astrue, No. 1:11-cv-246 (N.D. Ind.
Aug. 2, 2012); Mem. in Supp. of Mot. for Award of Att’ys Fees, Gaskill v. Astrue, No. 1:08-cv-308 (N.D. Ind. Mar.
1, 2010); Mem. in Supp. of Mot. for Award of Att’ys Fees, Gray v. Astrue, No. 1:08-cv-167 (N.D. Ind. July 9,
2009); Mem. in Supp. of Mot. for Award of Att’ys Fees, Owsley v. Astrue, No. 1:07-cv-73 (N.D. Ind. Mar. 19,
2008); Mem. in Supp. of Mot. for Award of Att’ys Fees, Grostefon v. Astrue, No. 1:05-cv-135 (N.D. Ind. Mar. 21,
2007).

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Forbes shall then distribute the appropriate portion of such award to Attorney Fouché. (See Reply
7-8.)
Enter for the 23rd day of August, 2012.
S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge

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