Hawkins v. Commissioner of Social Security
Filing
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OPINION AND ORDER: The Court GRANTS with relief different than requested the Motion of Award of Attorney's Fees Pursuant to the Equal Access to Justice Act 28 U.S.C. Section 2412 29 and GRANTS the Supplemental Motion of Award of Attorney F ees Pursuant to the Equal Access to Justice Act 28 U.S.C. Section 2412 36 . The Court ORDERS that Plaintiff is awarded attorney fees in the total amount of $22,471.80 pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. Signed by Magistrate Judge Joshua P Kolar on 12/12/2019. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
RAMONA D. HAWKINS,
Plaintiff,
v.
ANDREW M. SAUL, Commissioner of the
Social Security Administration,
Defendant.
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CAUSE NO.: 1:18-CV-83-JPK
OPINION AND ORDER
This matter is before the Court on (1) a Motion of Award of Attorney’s Fees Pursuant to
the Equal Access to Justice Act 28 U.S.C. Section 2412 [DE 29] and (2) a Supplemental Motion
of Award of Attorney Fees Pursuant to the Equal Access to Justice Act FEES28 U.S.C. Section
2412 [DE 36], filed by Plaintiff Ramona D. Hawkins.
On April 6, 2018, Plaintiff filed a Complaint seeking judicial review of the Commissioner’s
decision denying her disability insurance benefits. On October 2, 2018, Plaintiff filed an opening
brief. On December 21, 2018, the Commissioner filed a response, and on January 4, 2019, Plaintiff
filed a reply. On April 4, 2019, the Court granted Plaintiff’s request for remand.
In the Motion of Award of Attorney’s Fees, Plaintiff seeks fees under the Equal Access to
Justice Act (“EAJA”) in the amount of $24,522.00 for 122 hours of attorney work at an hourly rate
of $201.00. On May 28, 2019, the Commissioner filed a response brief in opposition to Plaintiff’s
fee request, opposing the number of hours as unreasonable and asking the Court to reduce the
request to 60 hours. Plaintiff filed a reply on June 14, 2019, along with a Supplemental Motion for
EAJA Fees in the amount of $5,487.30 for 27.30 hours spent drafting the reply brief in support of
the original motion for EAJA fees. The Commissioner did not file a response to the supplemental
motion, and the time to do so has passed. In total, the fee amount requested by Plaintiff is
$30,009.30.
The prevailing party in a civil action against the United States is entitled to attorney fees
unless the Court finds that the position of the United States was substantially justified or that
special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). The fee applicant bears
the burden of establishing that she is entitled to the reward, documenting the hours and hourly
rates, and demonstrating that the requested hours are reasonable. Hensley v. Eckerhart, 461 U.S.
424, 437 (1983). The fee applicant must further make a good faith effort to exclude hours that are
excessive, redundant, or otherwise unnecessary. Id. at 434 (“‘Hours that are not properly billed to
one’s client also are not properly billed to one’s adversary pursuant to statutory authority.’”
(quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980) (en banc))); see also Tchemkou
v. Mukasey, 517 F.3d 506, 510 (7th Cir. 2008) (“When calculating an EAJA award, we must
exclude hours that were not reasonably expended and we may reduce the amount of the award
accordingly.” (internal quotation marks omitted) (quoting Hensley, 461 U.S. at 434) (citing
28 U.S.C. § 2412(d)(1)(C))). Determining the amount of the fee award is a matter of discretion for
the Court, due to its “superior understanding of the litigation and the desirability of avoiding
frequent appellate review of what essentially are factual matters.” Hensley, 461 U.S. at 437. The
Court considers a number of factors when making this determination, including the results
obtained, the complexity of the case, the staffing particulars, and the quality of outcome for the
requesting party. Hensley, 461 U.S. at 434-37; Tchemkou, 517 F.3d at 511.
In a memorandum accompanying the Motion of Award of Attorney’s Fees, Plaintiff sets
out her calculation for arriving at a rate of $201.00 per hour. The memorandum does not present
arguments justifying the number of attorney hours for which Plaintiff requests compensation.
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Rather, Plaintiff only attempts to justify the number of hours in her reply, in order to refute the
arguments set forth by the Commissioner in his response.
The Commissioner does not oppose the hourly rate asserted by Plaintiff. However, the
Commissioner opposes the number of hours sought by Plaintiff in this matter on two grounds.
First, the Commissioner argues that the 122 hours of attorney work sought are excessive. (Resp. 2,
ECF No. 32). The Commissioner notes that, per a review of relevant granted EAJA petitions in
cases not involving appellate-level work, the highest total hours awarded for a case in this district
was 89.85 hours in Bishop v. Berryhill, 2018 WL 5129484, at *3 (Oct. 22, 2018), litigated by the
same plaintiff’s counsel as the instant case, with the next highest number of hours at 74.7 hours in
Verlee v. Colvin, No. 1:12-CV-45, 2013 WL 6063243, at *10 (N.D. Ind. Nov. 18, 2013). 1 Id. The
Commissioner further notes that the standard range of attorney hours for Social Security litigation
is approximately 40-60 hours in the Seventh Circuit. Id. at 3 (citing Parker v. Berryhill, No. 2:15CV-316-JEM, 2017 WL 1405357, at *3 (N.D. Ind. Apr. 20, 2017)). Moreover, the administrative
record in this case was 578 pages, which the Commissioner contends is well below the average in
both the Northern and Southern District of Indiana. Id. (noting the average administrative record
in these districts is 802 pages). Accordingly, the Commissioner submits that a reduction of the
EAJA fees to $12,060.00, representing 60 hours at the requested hourly rate of $201.00 per hour,
would be reasonable in this case. Id.
Second, the Commissioner argues that certain specific hours listed by Plaintiff should be
disallowed. Citing to Hensley, the Commissioner contends that hours spent working on arguments
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The Commissioner stated the number of hours awarded in Verlee as 87.9. (Resp. 2, ECF No. 32). This number
included the additional 13.2 hours awarded for defending the fee application. Because the 89.85 hours awarded in
Bishop excluded the additionally awarded 17.15 hours spent defending the fee application, the Court has adjusted the
Commissioner’s notation for Verlee to reflect a true comparison between the two cases and the instant matter.
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upon which Plaintiff did not prevail before the Court are non-compensable. Id. at 3-4. The
Commissioner states that, per Plaintiff’s time log, 14.4 hours were spent briefing Plaintiff’s
argument regarding Dr. Bundza. 2 Id. at 4. Further, 4.7 hours were spent briefing Plaintiff’s
argument regarding inconsistent use or misuse of medication and an August 2015 consultative
examination. Id. Because the Court ruled against Plaintiff on both of these issues, the
Commissioner argues that, at a minimum, the total award should be reduced by $3,839.10—the
number of hours spent on the unsuccessful arguments (19.1) multiplied by the hourly rate
($201.00). 3 Id.
In her reply, Plaintiff acknowledges that the requested EAJA fees are higher than average
but asserts that they are nonetheless appropriate in this circumstance. In Hensley, the Supreme
Court set out two inquiries to be addressed when determining whether to adjust a fee award for a
plaintiff who prevailed on only some of her claims for relief: 1) whether the plaintiff failed to
prevail on claims that were unrelated to the claims on which she succeeded, and 2) whether the
plaintiff achieved a level of success that made the hours reasonably expended a satisfactory basis
for making a fee award. 461 U.S. at 434. In cases where a plaintiff brings distinctly different claims
for relief, based on different facts and legal theories, counsel’s work on one claim will be unrelated
to his work on another claim. Id. at 434-35. “Accordingly, work on an unsuccessful claim cannot
be deemed to have been ‘expended in the pursuit of the ultimate result achieved.’” Id. at 435
(internal citation omitted).
Addressing the first inquiry, Plaintiff asserts that in the instant matter, all of her claims
were related. (Reply 1-2, ECF No. 35). Specifically, Plaintiff argues that her claims involved a
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The Commissioner incorrectly states this number as 14.2 hours. However, per the Court’s review of the itemization
in Plaintiff’s counsel’s affidavit, the correct number is 14.4 hours. (Aff. Supp. Mot. Fees, ECF No. 31).
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The Court has corrected the Commissioner’s numbers per the aforementioned itemization and note in Footnote 2.
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common core of facts and were based on related legal theories. Id. at 2. As to the second inquiry,
Plaintiff argues that she received an excellent result. Id. Plaintiff notes that, while she was not
awarded benefits, her claim will go back for a third administrative hearing in which she could be
awarded benefits of approximately $60,000.00. Id.
Plaintiff goes on to address twelve factors enumerated in Hensley to be considered when
determining whether the number of hours expended was reasonable:
(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 (internal citation omitted).
As to the first factor, Plaintiff spends several pages recounting the exact number of hours
spent by counsel reviewing the record, conducting research, and drafting arguments. (Pl.’s Reply
3-6, ECF No. 35). Acknowledging that the administrative record was not lengthy, Plaintiff
nonetheless argues that an extensive review of the record was necessary to identify citations that
contradicted the ALJ’s reasoning. Id. at 4. For the second factor, Plaintiff argues that, while the
issues in the case were not novel, they were nonetheless difficult due to many factual issues. Id. at
6. Plaintiff asserts that, for the third factor, Social Security disability cases involve substantial
evidence issues, and that this matter in particular involved “cherry-picking” by the ALJ and
evidence on Plaintiff’s trouble with sleep. Id. at 7. Addressing the eighth factor, Plaintiff states
that counsel achieved an “excellent” result for Plaintiff because the Court remanded on three of
four bases presented by Plaintiff. Id. On the ninth factor, Plaintiff notes that counsel has
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considerable experience and qualifications in this area of law. Id. For the eleventh factor, Plaintiff
notes that counsel has represented her through two hearings and two federal court cases. Id. at 8.
Finally, regarding the twelfth factor, Plaintiff argues that, while the Commissioner correctly states
that the EAJA fee requested here is substantially greater than the highest such award in similar
cases in this jurisdiction, the awards in other cases is only one of the many factors to be considered
by the Court. Id. Plaintiff makes no arguments regarding the fourth, fifth, sixth, seventh, and tenth
factors.
Without implying any malfeasance on the part of Plaintiff’s counsel, the Court finds that
the number of hours requested here is simply unreasonable. The Court acknowledges that
Plaintiff’s counsel achieved a favorable result for his client. Indeed, Plaintiff’s attorney
demonstrated to the Court that much of the ALJ’s decision was a collection of findings
unsupported by substantial evidence or contrary to law. Further, the Court is aware of the time and
effort that must be expended in Social Security cases to review the administrative record, which
often includes complex medical records. Nonetheless, the Court is unpersuaded that it was
reasonable for Plaintiff’s counsel to expend 122 hours—more than double the high end of the
standard range of attorney hours for Social Security litigation in this jurisdiction—on a case that
presented no novel issues and which had a shorter than average administrative record.
Determining how best to logically reduce the requested EAJA fees in this matter is difficult.
First and foremost, while many of Plaintiff’s claims were related, the Court is unconvinced that
arguments regarding Dr. Bundza and the inconsistent use or misuse of medication and an August
2015 consultative examination are so intertwined with Plaintiff’s other claims that they cannot be
excised for the purposes of determining a fee award. The Court is therefore persuaded by the
Commissioner’s contention that the total number of hours can be properly reduced by the number
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of hours spent on these arguments. While the Court notes that attorneys may need to spend a certain
amount of time on non-meritorious arguments, if only to weed them out, the Court nonetheless
finds that Plaintiff has not carried her burden under Hensley in regards to these particular hours.
However, while the Commissioner contends that 4.7 hours were spent briefing Plaintiff’s
argument regarding inconsistent use or misuse of medication and an August 2015 consultative
examination, the Court’s review of the underlying filings and Plaintiff’s counsel’s itemization
show that these hours encompass work performed on those two topics plus an additional topic not
mentioned by the Commissioner. Plaintiff prevailed on that additional point and thus, by the
Commissioner’s own reasoning, the award should not be reduced by the time spent on that
argument. The Court thus reduces the award by 14.4 hours, the time spent on arguments regarding
Dr. Bundza, and 3.1 hours, representing approximately two-thirds of the 4.7 hours spent on the
three aforementioned issues, for a total of 17.5 hours. These reductions bring the total number to
104.5 hours, which is still substantially higher than average.
Comparing the instant matter to Bishop and Verlee, noted by the Commissioner as having
the highest total hours awarded in this district, further justifies a slight reduction in the hours
claimed here. In Bishop, the court awarded 89.85 hours out of the originally requested 108.9. 2018
WL 5129484, at *1, *3. In that case, the court remanded on all five bases presented by the plaintiff
and the Administrative Record was substantially longer at 840 pages. Id. at *1. In Verlee, the court
awarded 74.7 hours out of the originally requested 100.8. No. 1:12-CV-45, 2013 WL 6063243, at
*7, *10. The Administrative Record in Verlee was similar in length to the instant matter at 600
pages, and the court found that three of the plaintiff’s four arguments had little merit. Id. at *8-9.
Nonetheless, the work was performed by two attorneys, the plaintiff advanced a constitutional
challenge that he asserted was an issue of first impression for a claim for Social Security disability
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benefits, and the number of hours sought included those spent objecting to the magistrate judge’s
report and recommendation. Id. at *7, *8, *9. Further, the total number of hours sought by the
plaintiff, minus the hours spent objecting to the report and recommendation and defending the fee
application, was a mere 59.7—less than half of what is sought in the instant case. Id. at *9. The
court in Verlee awarded those 59.7 hours and reduced the hours sought for objecting to the report
and recommendation from 29.7 to 15, for a total of 74.7 hours. Id. at *10, *10 n.4.
The Court recognizes that all cases will vary, and that a perfect comparison between the
hours expended on one matter versus another is impossible. Nonetheless, in looking to the parties’
arguments and contrasting the instant matter with other cases, the Court finds that Plaintiff has
simply failed to meet her burden of demonstrating that the requested hours are reasonable. The
Court thus imposes a global reduction of an additional 20 hours, and finds that Plaintiff’s counsel
is entitled to an award for 84.5 hours, for a total fee award of $16,984.50 at an hourly rate of
$201.00. Finally, in the Supplemental Motion, Plaintiff asks for an additional $5,487.30 for
drafting the reply brief on the instant motion to defend the EAJA fee. Plaintiff’s reply brief was
the only opportunity to defend against the Commissioner’s request that the Court significantly
reduce the number of attorney hours requested by Plaintiff. The Commissioner has not filed an
objection to this request. Therefore, the Court grants the request for an additional $5,487.30 for
drafting the reply brief on the instant motion for fees. This brings the total fee award to $22,471.80.
CONCLUSION
Accordingly, the Court hereby GRANTS with relief different than requested the Motion
of Award of Attorney’s Fees Pursuant to the Equal Access to Justice Act 28 U.S.C. Section 2412
[DE 29] and GRANTS the Supplemental Motion of Award of Attorney Fees Pursuant to the Equal
Access to Justice Act FEES28 U.S.C. Section 2412 [DE 36]. The Court ORDERS that Plaintiff is
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awarded attorney fees in the total amount of $22,471.80 pursuant to the Equal Access to Justice
Act, 28 U.S.C. § 2412. If the Government determines that Plaintiff does not owe a pre-existing
debt subject to offset, the Commissioner shall direct that the award be made payable to Plaintiff’s
attorney pursuant to the EAJA assignment duly signed by Plaintiff and her counsel.
So ORDERED this 12th day of December, 2019.
s/ Joshua P. Kolar
MAGISTRATE JUDGE JOSHUA P. KOLAR
UNITED STATES DISTRICT COURT
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