Sutton v. Commissioner of Social Security

Filing 31

OPINION AND ORDER: GRANTING 26 MOTION for Attorney Fees Under the Equal Access to Justice Act by Plaintiff Cathy J Sutton, in part, and AWARDS the plaintiff fees in the total amount of $8,223.80. Signed by Judge Robert L Miller, Jr on 2/7/2018. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
CATHY SUTTON,
Plaintiff
v.
NANCY A. BERRYHILL,1
Acting Commissioner of
Social Security,
Defendant

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CAUSE NO. 1:13-CV-217 RLM

OPINION AND ORDER
This cause is before the court on Cathy Sutton’s motion for attorney fees
under the Equal Access to Justice Act, 28 U.S.C. § 2412, following the entry of
judgment remanding the case to the Commissioner of Social Security for further
proceedings. Ms. Sutton seeks an award of fees and costs in the amount of
$8,598.81. For the following reasons, the court grants her motion in part and
denies it in part.
The EAJA isn’t an automatic fee-shifting statute, so merely prevailing
against the Commissioner doesn't entitle a party to an award of fees. Potdar v.
Holder, 585 F.3d 317, 319 (7th Cir.2009). The EAJA allows a district court to
award attorney’s fees when: (1) the claimant was a prevailing party, (2) the
government's position was not “substantially justified,” (3) no special
circumstances make an award unjust, and (4) the claimant filed a timely and

1 Nancy A. Berryhill, the Acting Commissioner of Social Security, has been substituted

as the named defendant, pursuant to Fed. R. Civ. P. 25(d)(1).

complete application with the district court. Stewart v. Astrue, 561 F.3d 679, 683684 (7th Cir. 2009).
The Commissioner doesn’t dispute that Ms. Sutton is a prevailing party,
that no special circumstances would make an award of fees and costs unjust, and
that the motion for fees was timely filed. But she does contend that her position
was substantially justified, precluding an award of fees.
EAJA fees can be awarded if either the government’s pre-litigation conduct
(the ALJ’s decision) or its litigation position aren’t substantially justified.
Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir. 2004) (quoting Marcus v.
Shalala, 17 F.3d 1033, 1036 (7th Cir. 1994)). The Commissioner bears the burden
of establishing that her position was substantially justified overall. Conrad v.
Barnhart, 434 F.3d 987, 990 (7th Cir.2006).2 To meet that burden, she must show
that: (1) [she] had a reasonable basis in truth for the facts alleged, (2) [she] had
a reasonable basis in law for the theory propounded, and (3) there was a
reasonable connection between the facts alleged and the theory propounded.
Kholyavskiy v. Holder, 561 F.3d 689, 691 (7th Cir. 2009).
The Commissioner contends that the only error in the ALJ’s decision – a
lack of articulation – was harmless, and that the position she took was justified.
But the law “requires that an agency’s discretionary order be upheld, if at all, on

2 “[A] position can be justified even though it is not correct, and...can be substantially (i.e., for
the most part) justified if a reasonable person could think it correct, that is if it has a
reasonable basis in law and fact. Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988); see also
Stewart v. Astrue, 561 F.3d 679, 683 (7th Cir.2009); Golembiewski v. Barnhart, 382 F.3d 721,
724 (7th Cir. 2004).

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the same basis articulated in the order by the agency itself.” Hanson v. Colvin,
760 F.3d 759, 762 (7th Cir. 2014) (quoting Burlington Truck Lines, Inc. v. United
States, 371 U.S. 156, 168-69 (1962)). That doctrine prohibits the Commissioner
from defending an administrative decision on a new ground not set forth in the
agency's original decision. Gutierrez v. Lynch, 834 F.3d 800, 806 (7th Cir. 2016);
see also Hanson v. Colvin 760 F.3d at 762; Spiva v. Astrue, 628 F.3d 346, 353
(7th Cir. 2010). She did just that in this case. The decision was reversed and the
case remanded because the ALJ didn’t mention or consider the 2011 diagnosis of
myofascial pain syndrome in determining whether Ms. Sutton’s testimony was
credible. The Commissioner tried to explain what the ALJ might have decided had
he discussed the diagnosis, but the law requires the discussion and decision to
come from the ALJ, not counsel. Spiva v. Astrue, 628 F.3d at 353.
Neither the facts or law support the Commissioner’s assertion that her
position was substantially justified because any error in the ALJ’s decision was
“harmless.” An error is only harmless if the court can be certain that on remand
the ALJ would come to the same conclusion it previously came to despite its error.
Id. But it’s not the court’s job to reweigh the evidence or speculate on what
conclusions the ALJ might or might not make from evidence he or she has yet to
consider. Id.
The only issue remaining is whether the hours expended and hourly rate
requested are reasonable. The EAJA permits recovery of attorney fees based on
“prevailing market rates,” but not in excess of $125 per hour, “unless the court

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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.” 28 U.S.C. § 2412(d)(2)(A).
Ms. Sutton’s attorney, Joseph Sellers, contends that an hourly fee greater
than $125.00 is warranted based on inflation, a rise in the cost of living, and past
fee awards in this circuit. He submitted an itemized statement and documentation
(including affidavits from two attorneys in Illinois indicating that they would
charge between $250 and $350 per hour in cases requiring judicial review of a
Social Security decision) indicating that a reasonable hourly rate for his and his
co-counsel, Deborah Spector, services, would range between $187.02 (for work
performed in 2013) to $190.54 (for work performed in December 2015 and
January 2016) based on the cost of living adjustments allowed by statute when
employing the Bureau of Labor Statistics’ Consumer Price Index.
The Commissioner didn’t object to the hours expended or the amount
requested. “[G]iven the passage of time since the establishment of the hourly rate,”
counsel’s use of the Consumer Price Index to calculate an appropriate inflation
adjustment is reasonable, Tchemkou v. Mukasey, 517 F.3d 506, 512 (7th Cir.
2008), as are the number of hours expended.
In his itemized statements, Mr. Sellers indicated that he and Ms. Spector
invested a total of 40.5 hours—32.75 hours working on Ms. Sutton’s case [Doc.
No. 27] and another 7.75 hours replying to the Government’s response in
opposition to Ms. Sutton’s application for fees [Doc. No. 30]. When multiplied by

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the appropriate hourly rate for the relevant time period, attorney’s fees equal
$7,686.91. Together with a $61.89 non-taxable expense [Doc. No. 27-2], Ms.
Sutton’s lawyer’s fees and expenses equal $7,748.80.
Ms. Sutton also asked that certain paralegal fees be awarded. “[T]ime spent
on what are essentially ‘clerical’ or secretarial tasks” isn’t compensible under the
EAJA. Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 553 (7th Cir. 1999).
To determine whether a paralegal’s task was clerical or secretarial, the relevant
question is “‘whether the work is sufficiently complex to justify the efforts of a
paralegal, as opposed to an employee at the next rung lower in the pay-scale
ladder.’” Id. (quoting People Who Care v. Rockford Bd. of Edu., Sch. Dist. No. 205,
90 F.3d 1307, 1315 (7th Cir, 1996)). “[O]rganizing filing folders, document
preparation, and copying documents” are examples of tasks that shouldn’t be
included in fee awards. Spegon v. Catholic Bishop of Chicago, 175 F.3d at 553.
Ms. Sutton requested fees for 8.5 hours of paralegal work billed at $100 an
hour, totaling $850. Under the standards the court must apply, 3.75 of those
hours are attributable to clerical work, so the court reduces the award by
$375.00.
For the foregoing reasons, the court GRANTS the motion for an award of
fees and costs under the Equal Access to Justice Act [Doc. No. 26] in part, and
awards the plaintiff fees in the total amount of $8,223.80.
SO ORDERED.

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ENTERED:

February 7, 2018

/s/ Robert L. Miller, Jr.
Judge
United States District Court

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