Farrell v. Commissioner of Social Security
Filing
46
OPINION AND ORDER granting 37 Motion for Attorney Fees; The Commissioner is ORDERED to pay $22,377.00 in attorneys fees. Signed by Magistrate Judge Andrew P Rodovich on 2/10/14. (mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ANGELA M. FARRELL,
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Plaintiff,
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v.
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CAROLYN W. COLVIN1, ACTING
COMMISSIONER OF SOCIAL SECURITY
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ADMINISTRATION
)
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Defendant.
)
__________________________________________)
Civil Action No. 2:10-CV-226
OPINION AND ORDER
This matter is before the court on the Motion For Award of EAJA Fees [DE 37] filed by the
plaintiff, Angela M. Farrell, on November 26, 2012. For the following reasons, the motion is
GRANTED.
Background
The plaintiff, Angela M. Farrell, applied for Disability Insurance Benefits on May 11,
2005, alleging disability since November 2, 2003. Her claim initially was denied, and was
denied by the ALJ following a hearing. Farrell requested review by the Appeals Council. On
February 23, 2007, the Appeals Council remanded the case, and a second hearing was held. The
ALJ issued a denial of benefits on November 24, 2008. In his decision, the ALJ explained that
Farrell did not meet the listing for fibromyalgia because none of the physicians whose opinions
1
On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of Social
Security. Pursuant to Federal Rule of Civil Procedure 25(d), Carolyn W. Colvin is automatically
substituted for Michael J. Astrue as the named Defendant.
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were presented to the ALJ at the hearing found that Farrell had at least eleven of the 18
traditional fibromyalgia tender spots. After the hearing before the ALJ, Farrell submitted
supplemental evidence to the Appeals Council, which included Dr. Ryan Loyd’s assessment. Dr.
Loyd diagnosed Farrell with fibromyalgia after finding tenderness in sixteen pressure points on
one occasion and eighteen on another. The Appeals Council denied Farrell’s request for review,
and Farrell appealed to this court.
Upon review, this court affirmed the decision of the Commissioner, explaining that it
would not consider evidence that was not before the ALJ when determining whether the ALJ
erred in reaching his decision to deny benefits. Farrell appealed, and the Seventh Circuit
remanded this matter. In its Opinion, the Seventh Circuit explained that although this court was
correct to disregard the evidence submitted for the first time to the Appeals Council when
determining whether the ALJ made an error, the evidence should have been considered to
determine whether the Appeals Council was correct to deny review. The Seventh Circuit went
on to state that the Appeals Council’s reason for rejecting review was not clearly stated but that
the newly submitted evidence was both material and filled in the evidentiary gap identified by
the ALJ.
Farrell now moves for attorney’s fees, arguing that the Commissioner’s position was not
substantially justified. The Commissioner opposes Farrell’s motion, and alternatively argues
that the attorney fee should be reduced.
Discussion
The EAJA allows a prevailing plaintiff to recoup reasonable attorney fees incurred in
litigation against the Commissioner of Social Security “unless the court finds that the position of
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the United States was substantially justified or that special circumstances make an award unjust.”
28 U.S.C. § 2412(d)(1)(A); see also Commissioner, I.N.S. v. Jean, 496 U.S. 154, 154, 110 S.Ct.
2316, 110 L.Ed.2d 134 (1990); Golembiewski v. Barnhart, 382 F.3d 721, 723-34 (7th Cir.
2004). A fee application must be filed within thirty days of a court’s final judgment and must
satisfy the following requirements: (1) a showing that the applicant is a “prevailing party;” (2) a
showing that the application is “eligible to receive an award;” (3) a showing of “the amount
sought, including an itemized statement from any attorney or expert witness representing or
appearing in[sic] behalf of the party stating the actual time expended and the rate at which fees
and other expenses were computed;” and (4) an “alleg[ation] that the position of the United
States was not substantially justified.” 28 U.S.C. § 2412(d)(1)(B); see also Scarborough v.
Principi, 541 U.S. 401, 405, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004); United States v. Hallmark
Constr. Co., 200 F.3d 1076, 1078-79 (7th Cir. 2000) (setting forth the elements of §
2412(d)(1)(A) & (B))).
Considering whether the Commissioner was substantially justified, the court is to analyze
the “position of the United States,” which refers to the conduct of the Commissioner throughout
the civil action, including pre-litigation conduct. 28 U.S.C. § 2412(d)(2)(D); Golembiewski, 382
F.3d at 724; Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir. 1994). The trial court must
consider whether the Commissioner’s pre- and post-litigation “position was grounded in: (1) a
reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for the theory
propounded; and (3) a reasonable connection between the facts alleged and the legal theory
advanced.” Golembiewski, 382 F.3d at 724 (citing Hallmark Constr., 200 F.3d at 1080). A
court should evaluate the factual and legal support for the Commissioner’s position throughout
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the entire proceeding. See Hallmark Constr., 200 F.3d at 1080. A court need only make one
determination regarding the Commissioner’s conduct during the entire civil action. Jean, 496
U.S. at 159, 110 S.Ct. at 2319; Jackson v. Chater, 94 F.3d 274, 278 (7th Cir. 1996). “[F]ees
may be awarded in cases where the government’s prelitigation conduct was not substantially
justified even though its litigation position may have been substantially justified and vice versa.”
Marcus, 17 F.3d at 1036. The court must undertake a global analysis of the government’s
position because whether that position was substantially justified will rarely be decided by a
single issue. See Hallmark Constr., 200 F.3d at 1080.
Although the EAJA does not define “substantial justification,” the Supreme Court has
defined the term to mean “justified to a degree that could satisfy a reasonable person.” Pierce v.
Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988); see also
Golembiewski, 382 F.3d at 724. Expanding on this definition, the Seventh Circuit has explained,
“‘Substantially justified’ does not mean ‘justified to a high degree,’ but rather has been said to be
satisfied if there is a ‘genuine dispute,’ or if reasonable people could differ as to the
appropriateness of the contested action.” Stein v. Sullivan, 966 F.2d 317, 320 (7th Cir. 1992)
(citing Pierce, 487 U.S. at 565, 108 S.Ct. at 2550); Church v. Astrue, 496 F.Supp.2d 964, 966
(N.D. Ind. 2007) (“[I]f an agency had ‘a rational ground for thinking it had a rational ground for
its action,” the Commissioner's position is substantially justified.’” (citing Kolman v. Shalala, 39
F.3d 173, 177 (7th Cir. 1994)). When conducting this analysis, the court should consider
whether the ALJ’s decision was supported by evidence of record and whether the
Commissioner’s position was supported by applicable law. Church, 496 F.Supp.2d at 966
(citing Cunningham v. Barnhart, 440 F.3d 862, 863 (7th Cir. 2006); Kolman v. Shalala, 39 F.3d
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173, 177 (7th Cir. 1994)). The substantial justification standard is different than the substantial
evidence standard, which is used to evaluate the merits of a claimant’s request for remand. See
Pierce, 487 U.S. at 568-69, 108 S.Ct. at 2552. Thus, a loss on the merits does not automatically
constitute a lack of substantial justification. See Pierce, 487 U.S. at 569, 108 S.Ct. at 2252. The
Commissioner bears the burden of proof in showing that the government’s litigation position was
substantially justified. See Pierce, 487 U.S. at 565, 108 S.Ct. at 2561; Golembiewski, 382 F.3d
at 724.
On appeal, the Seventh Circuit explained that the District Court was correct that it should
not consider evidence that was not before the administration to determine whether the ALJ
committed an error. However, that was not the same question as whether the Appeals Council
properly rejected Farrell’s appeal. The Commissioner was required to evaluate new and material
evidence when determining whether a case qualified for review by the Appeals Council. See 20
§ C.F.R. 404.970(b). The Seventh Circuit noted that the Appeals Council’s rejection of plenary
review was “not as clear as it might be. On one hand it might indicate that the Appeals Council
found the proffered new evidence to be immaterial, but on the other hand it might indicate that
the Council accepted the evidence as material but found it insufficient to require a different
result.” See Farrell v. Astrue, 692 F.3d 767, 771 (7th Cir. 2012). The Seventh Circuit explained
that it would consider the new evidence to determine if the Appeals Council was correct in its
decision to reject review. Here, the materiality of the evidence submitted was “beyond
question” and “filled in the evidentiary gap” identified by the ALJ. Farrell, 692 F.3d at 771.
Therefore, the Appeals Council erred in failing to reconsider Farrell’s application for benefits.
The Seventh Circuit indicated that the Appeals Council’s opinion was “not as clear as it
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might be”, leading the court to believe that a reasonable person could differ on the reason why
the Appeals Council rejected review. However, the Seventh Circuit went on to state that
whether the Appeals Council rejected review because it found the additional evidence to be
material or because it did not believe that the material evidence demanded a different result, its
decision was a blatant error because the newly submitted evidence both was clearly material and
filled in the evidentiary gap identified by the ALJ. Because the Commissioner must show that a
reasonable person could differ on the validity of the agency’s decision at each step, and here the
Seventh Circuit suggested that the error was obvious, the court finds that the Commissioner’s
decision was not substantially justified.
The Commissioner alternatively argues that the plaintiff’s fee request should be reduced.
Farrell has the burden of proving that the EAJA fees she seeks are reasonable. See Hensley v.
Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983); 28 U.S.C. §
2412(d)(1)(B). "Hours that are not properly billed to one's client are also not properly billed to
one's adversary pursuant to statutory authority." Hensley, 461 U.S. at 434, 103 S.Ct. at 1940-41
(quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980)). 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. See Hensley, 461 U.S. at 437, 103 S.Ct. at 1939-40. 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." Hensley, 461 U.S. at 437, 103 S.Ct. at 1941.
The Commissioner argues that the plaintiff’s attorney’s fees should be reduced because
counsel did not indicate which attorneys performed each tasks, did not provide the qualifications
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of one attorney, and the time spent on each task was excessive. Specifically, an unnamed
attorney spent 36.25 hours preparing three drafts of the opening brief, 15 of which were spent on
the facts. An additional 45.75 hours were spent drafting the opening brief of the plaintiff’s
appeal and 26.74 hours on the reply. Counsel charged for three drafts of the opening brief and
four drafts of the reply. Counsel also charged at the same rate for administrative tasks such as
reformatting, assembling the appendix, filing the briefs, and solving page numbering problems.
The Commissioner argues that the 36.25 hours spent drafting the opening brief was
excessive. However, other courts have found similar time expenditures appropriate. See Harris
v. Barnhart, 259 F.Supp.2d 775, 782 (E.D. Wis. 2003) (citing Henderson v. Barnhart, 205
F.Supp.2d 999 (E.D. Wis. 2002) (approving fees based on 54.2 hours of work at the rate of
$141.46/hour, for a total of $7667.13); Dominguese v. Barnhart, 2002 WL 32318281, *6 (E.D.
Wis. July 12, 2002)(noting that motions seeking payment for 66.95, 53.5, and 56.2 hours had
recently been approved by other courts, and approving 56.3 hours in that case)). This is
particularly true where the issues are numerous or complex. Here, Farrell’s opening brief was in
excess of the page limit set by the local rules and raised numerous issues. Farrell’s counsel spent
an additional 8.75 hours on the reply brief, bringing the total time expenditure to 45 hours, and
within the range of the amounts other courts have approved. The time expenditure appears
reasonable in light of the length and complexity of the case.
Similarly, the Commissioner criticizes the amount of time Farrell’s counsel spent
preparing the opening brief and reply on the appellate level. Farrell’s counsel billed for a total of
80 hours for these tasks, but he did not explain why it was necessary to bill nearly double the
amount of hours for her appeal than was necessary at the District Court level. At that point,
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counsel should have been familiar with the case, reducing the time expenditure. The 80 hours
requested far exceeds any hourly amount approved by the cases Farrell’s counsel cited and
included duplicate tasks, such as preparing three drafts of the opening brief and four of the reply.
The fee request also incorporated time spent on administrative tasks such as reformatting,
assembling the appendix, and solving the page number problems. However, it is unclear how
much time the plaintiff’s counsel spent performing these tasks. The court will reduce the
attorney fee award by 15 hours at the rate of $180 an hour.
Based on the foregoing, the Plaintiff’s Application for Attorney’s Fees Under the Equal
Access to Justice Act is GRANTED. The Commissioner is ORDERED to pay $22,377.00 in
attorney’s fees. If counsel can verify that Farrell owes no pre-existing debt subject to offset, the
Commissioner will direct that the award be made payable to Farrell’s attorney if the parties have
a signed EAJA assignment.
ENTERED this 10th day of February, 2014
/s/ Andrew P. Rodovich
United States Magistrate Judge
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