Blankenship v. Commissioner of Social Security

Filing 41

OPINION AND ORDER GRANTING 36 Application for Attorney Fees and costs Under the Equal Access to Justice Act filed by Margaret Ann Blankenship. Plaintiff's counsel is awarded a total of $11,809.80 in fees and costs. Signed by Judge William C Lee on 8/6/2018. (lns)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
MARGARET ANN BLANKENSHIP,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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CIVIL NO. 1:16cv222

OPINION AND ORDER
This matter is before the court on a motion for attorney’s fees and costs under the Equal
Access to Justice Act, filed by the Plaintiff on June 7, 2018. Defendant responded to the motion
on June 13, 2018, to which Plaintiff replied on June 27, 2018.
Discussion
On May 24, 2018, this court granted an “Unopposed Motion for an Indicative Ruling on
its 69(b) Motion for Relief from Judgment” and remanded Plaintiff’s application for benefits for
further proceedings as agreed by the parties. On May 26, 2018, a Clerk’s Entry of Judgment was
entered.
Plaintiff has now filed a motion for fees and costs pursuant to the Equal Access to Justice
Act “(EAJA”), requesting $8,827.00 for attorney fees, $99.00 for paralegal fees, and $905.00 in
costs, totaling $9,831.00. Plaintiff has also filed a supplemental request for fees to reflect the
time involved in replying to Defendant’s EAJA response. Plaintiff’s counsel claims he spent 10.2
hours researching and drafting the reply, and seeks an additional $1,978.80 for that work. In sum,
Plaintiff’s counsel is requesting an hourly rate of $194.00 for 55.7 hours of work, which equals

$10,805.80 in attorney fees, plus $99 for paralegal fees and $905.00 in costs, for a grand total of
$11,809.80.
In objection to Plaintiff’s request for EAJA fees, the Commissioner first argues that
Plaintiff’s counsel failed to provide evidence of the prevailing hourly rate, other than with his
own statement, which the Commissioner argues is insufficient. However, in Sprinkle v. Colvin,
777 F.3d 421, 423 (7th Cir. 2015), the Seventh Circuit explicitly stated that “an EAJA claimant
may rely on a general and readily available measure of inflation such as the Consumer Price
Index, as well as proof that the requested rate does not exceed the prevailing market rate in the
community for similar services by lawyers of comparable skill and experience. An affidavit from
a single attorney testifying to the prevailing market rate in the community may suffice to meet
that burden.” Plaintiff’s counsel has submitted evidence of the Consumer Price Index for 2016,
as well as his own affidavit. The Court finds this sufficient. Moreover, the hours spent on this
case, 55.5, and the rate, $194.00 per hour, are well within the range of comparable EAJA fees
awarded by this Court.
Next, the Commissioner argues that Plaintiff’s counsel’s two entries over a three-day
period lack the requisite specificity for this Court to review their reasonableness. Plaintiff’s
counsel’s timesheet contains two entries spanning a three-day period, one from June 6-8, 2016,
for 18.1 hours, and the other from November 18-20, 2017, for 11.4 hours. The Commissioner
claims that these entries are “exorbitant, unfounded, and procedurally defective.” The
Commissioner also faults Plaintiff’s Counsel for 11.4 hours spent for research on the opioid
crisis and pain management, because neither evidence nor argument regarding the opioid crises
was presented to the agency or the district court, but only at the appellate court.
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Although this Court prefers more specificity in timesheets, there is no indication that the
“lumped time” is exorbitant or inappropriate. Thus, the Court will not strike the time. With
respect to the issue of opioid research, Plaintiff’s counsel explains that at the appellate level, he
developed further his argument before this Court regarding Plaintiff’s pain medication issues.
Plaintiff’s counsel notes that looking at the broader societal implications of an issue is expected
in Seventh Circuit briefing. Notably, the Commissioner did not object to this line of argument at
the Seventh Circuit but, instead, agreed to a voluntary remand. Thus, this Court will not strike
the time.
Conclusion
On the basis of the foregoing, Plaintiff’s motion for EAJA fees [DE 36] is hereby
GRANTED. Plaintiff’s counsel is awarded a total of $11,809.80 in fees and costs.

Entered: August 6, 2018.

s/ William C. Lee
William C. Lee, Judge
United States District Court

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