Ruiz Sr. v. Commissioner of Social Security

Filing 45

OPINION AND ORDER granting 35 Motion for Attorney Fees under the Equal Access to Justice Act. Plaintiff is awarded attorney fees in the total amount of $12,478.12 pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. Signed by Magistrate Judge John E Martin on 5/18/16. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
JOHN M. RUIZ, SR.,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

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CAUSE NO.: 2:14-CV-69-JEM

OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion for Attorneys’ Fees Under the Equal
Access to Justice Act [DE 35], filed by Plaintiff on November 30, 2015. On January 8, 2016, the
Commissioner filed a response, and on January 29, 2016, Plaintiff filed a reply.
I.

Procedural Background
On September 17, 2015, the Court issued an Opinion and Order entering judgment in

Plaintiff’s favor and remanding the case for new proceedings. In the instant Motion, Plaintiff seeks
attorney’s fees for 62.8 hours of work at a rate of $191.25 per hour, and 1.5 hours of legal staff fees
at $95.00 per hour, for a total of $12,153.00. The Commissioner objects, arguing that Plaintiff failed
to justify the rate requested and failed to show that certain billed hours were reasonably expended.
II.

Analysis
The Equal Access to Justice Act (EAJA) allows a prevailing plaintiff to recover reasonable

attorney’s fees incurred in litigation against the Commissioner of Social Security “unless the court
finds that the position of the [Commissioner] 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, 155 (1990); Golembiewski v. Barnhart, 382 F.3d 721, 723 (7th Cir. 2004). An application for

attorney’s fees must be filed within thirty days of a court’s final judgment and must satisfy the
following requirements: (1) show that the applicant is a “prevailing party;” (2) show that the
applicant is “eligible to receive an award;” (3) show that “the amount sought, including an itemized
statement from [the] attorney or expert witness representing or appearing on behalf of the party
stating the actual time expended and the rate at which fees and other expenses were computed;” and
(4) “allege that the position of the [Commissioner] was not substantially justified.” 28 U.S.C. §
2412(d)(1)(B); see also Scarborough v. Principi, 541 U.S. 401, 405 (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)). Plaintiff has the burden of “proving that the EAJA fees” he seeks are
reasonable. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); 28 U.S.C. § 2412(d)(1)(B). The amount
of the fee award is ultimately a matter “for the court’s discretion.” Hensley, 461 U.S. at 437.
The parties agree that the instant Motion was filed within the requisite period in which to file
a petition for fees. See 28 U.S.C. § 2412(d)(1)(B), (d)(2)(G). By obtaining a remand, Plaintiff is
considered a “prevailing party.” Bassett v. Astrue, 641 F.3d 857, 859 (7th Cir. 2011). Further, there
is no dispute that Plaintiff’s net worth does not exceed two million dollars. See 28 U.S.C. §
2412(d)(2)(B). The Commissioner concedes that her position was not substantially justified. See 28
U.S.C. § 2412(d)(1)(B). The Commissioner’s sole objection is to the amount of fees requested.
Therefore, the only dispute is whether Plaintiff has met his burden of proving that both the hourly
rate requested and the number of hours claimed are reasonable.

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A.

Reasonableness of Requested Rate

Plaintiff argues that the Court should use the prevailing national market rate to set the hourly
rate for an award of attorney’s fees. The Commissioner responds that the Court should use the
prevailing regional market rate. The EAJA provides that an award of attorney’s fees “shall be based
upon prevailing market rates for the kind and quality of the services furnished, except 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 higher fee.” 28 U.S.C. §
2412(d)(2)(A)(ii). The Seventh Circuit Court of Appeals has interpreted this language to mean that
an attorney is not “automatic[ally] entitl[ed] to fee enhancements” or adjustments for inflation.
Sprinkle v. Colvin, 777 F.3d 421, 428 (7th Cir. 2015). Rather, the EAJA’s language regarding the
cost of living “reflects an assumption that general measures like the [consumer price index] will
provide a reasonably accurate measure of the need for an inflation adjustment in most cases.” Id. For
example, a plaintiff may show the effect of inflation on her attorney’s abilities to provide adequate
legal services by submitting “evidence of his typical hourly rate, how his operating costs have been
affected by inflation, what competent lawyers in the relevant geographic area charge, or that no
qualified attorney would provide representation in comparable cases at the statutory rate.” Walton
v. Colvin, No. 1:12-CV-688, 2013 WL 1438103, at *4 (S.D. Ind. Apr. 9, 2013). The decision to set
an hourly rate at the national or regional prevailing rate is left to the discretion of the district court.
Sprinkle, 777 F.3d at 428, n2.
In this case, Plaintiff calculated his requested hourly rate of $191.25 based on a cost of living
increase established by the national consumer price index (“CPI”) since 1996, the year the current
version of the EAJA went into effect. To show how he calculated his hourly rate, Plaintiff attached

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a chart from the U.S. Bureau of Labor Statistics of the national CPI for all urban consumers during
the relevant period and a National Law Journal Survey of Law Firm Economics. Plaintiff argues that
an hourly rate of $191.25 is commensurate with the national average and is on the low end of hourly
rates charged for Social Security litigation in the Seventh Circuit. In support, counsel for Plaintiff
has attached six sworn affidavits from attorneys practicing in the Seventh Circuit representing that
they charge hourly rates ranging from $165.00 to $550.00 for similar legal services provided to
Plaintiff in this case. Plaintiff further argues that because both the national and regional CPI are
lower than the prevailing market rate for Social Security litigation in the Seventh Circuit, adopting
the national CPI moves the Court closer to the prevailing market rate and cost of living adjustments
contemplated by the EAJA.
The Commissioner counters that Plaintiff’s hourly rate should be adjusted to reflect the
regional prevailing market rate for Social Security Litigation based on the “region in which the work
was performed.” To that end, the Commissioner argues that Plaintiff is entitled to an increase in the
cost of living based on the Midwest Urban Consumer Price Index, which leads to a rate of $186.98
per hour.
Although the Commissioner argues that a regional prevailing market rate should apply based
on the location of the litigation, the cases she cites in support of that argument are not from the this
district. Indeed, the Court finds support from the Northern District of Indiana that the hourly fee
should be based on the national CPI. See Hamrick v. Astrue, No. 1:09-CV-179, 2010 WL 3862464,
at *3-4 (N.D. Ind. Sept. 27, 2010); Boyanowski v. Colvin, No. 1:12-CV-139, 2014 WL 146184, at
*2 (N.D. Ind. April 15, 2014). In addition, Plaintiff’s attorney affidavits, which the Commissioner
does not challenge, “are more than sufficient evidence” that the hourly rate he requests is in line with

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those prevailing in the community for similar services by lawyers of comparable skill and
experience. Sprinkle, 777 F.3d at 428.
Taking into account that Plaintiff’s requested hourly rate based on the national CPI is
consistent – if not on the low end – with fees charged for Social Security representation in the
Seventh Circuit, the Court, in its discretion, finds that the national CPI should apply in this case.
Therefore, Plaintiff has justified his requested hourly rate of $191.25 in attorney’s fees.
B.

Reasonableness of Hours Expended

The Commissioner contests the number of hours claimed by Plaintiff. The Commissioner
specifically argues that Plaintiff should be awarded no more than 40 hours in attorney’s fees for the
work performed in this case. Plaintiff represents that 40-60 hours is the reference range for this type
of case in the Northern District of Indiana for EAJA purposes, and argues that requests for fees that
slightly exceed 60 hours are reasonable and regularly granted in the Northern District of Indiana.
A court should exclude from the “fee calculation hours that were not ‘reasonably
expended.’” Hensley, 461 U.S. at 434 (quoting S. Rep. No. 94-1011, p. 6 (1976)); accord Tchemkou
v. Mukasey, 517 F.3d 506, 510 (7th Cir. 2008). The burden remains with Plaintiff to prove that the
hours were “reasonably expended.” Hensley, 461 U.S. at 437. Additionally, “‘[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 (quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980))
(emphasis in original). Accordingly, a party requesting attorney’s fees should make a good-faith
effort to exclude hours that are “excessive, redundant, or otherwise unnecessary.” Id. at 437.
In the instant Motion, Plaintiff has attached a log showing 62.8 attorney hours and 1.5 legal
staff hours spent on various tasks related to his appeal. The log included a twenty minute telephonic

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meeting between Plaintiff and his attorney prior to filing his petition for judicial review to explain
appellate procedure and the attorney fee arrangement; 27.5 hours for reviewing the 889-page
administrative record and preparing the opening brief; 4.6 hours reviewing and editing the opening
brief; 9.1 hours preparing and editing the reply brief; 2.3 hours preparing the instant EAJA
application; and assorted hours for preparation of a medical summary and abstract and assessment
of the case and brief editing by a supervising attorney.
The Court finds ample support for Plaintiff’s assertion that courts in this district regularly
award attorney’s fees totaling over 60 hours. See Copeland v. Astrue, No. 2:11-CV-363, 2012 WL
4959482, at *2 (N.D. Ind. Oct. 17, 2012) (finding that although 40 to 60 hours is the standard, 64.9
hours of attorney time is within the permissible range for Social Security litigation in the Seventh
Circuit); Kinsey-McHenry v. Colvin, No. 2:12-CV-332, 2014 WL 1643455, at *3 (N.D. Ind. Apr.
23, 2014) (awarding EAJA fees for 62.9 hours of attorney time); Jenkins v. Astrue, 544 F. Supp. 2d
736, 743 (N.D. Ind. 2008) (awarding 63.4 hours of attorney time, plus 7.7 hours of time to prepare
for the EAJA reply brief, for a total of 71.4 hours).
The Commissioner argues that Plaintiff’s request of 62.8 hours is excessive and that in
Puckett v. Colvin, No. 13-cv-01451, slip op. at 3 (S.D. Ind. Oct. 8, 2015), “this court has recently
held, in a decision favoring the Commissioner’s request to have attorney’s fees reduced, that a fee
based on 40 hours of work, the upper end suggested by the Commissioner, is reasonable.” However,
Puckett was neither decided by this Court nor in the Northern District of Indiana. Moreover, even
discounting that Puckett was not decided by this Court or from within this district, the
Commissioner’s reliance on it is misguided. In Puckett, the court reduced the number of attorney
hours the plaintiff was awarded to 40 hours because “the effort reflected in the briefs filed by

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[plaintiff’s attorney] ... d[id] not justify the amount of fees he seeks.” Id. Specifically, the court
noted that “only about four pages [of the opening brief] made up the argument section.” Id. at 2.
Puckett did not, as the Commissioner argues, set an upper end of reasonableness of 40 hours of work
for all social security cases; rather, the court’s adjustment of the award in that case was based on its
evaluation of the limited work performed by plaintiff’s counsel. See, e.g., Hochgesang v. Colvin, No:
1-14-CV-2044, 2015 WL 7288628 at *3 (S.D. Ind. Nov. 11, 2015) (holding that the Commissioner’s
reliance on Puckett was misplaced because the case did not purport to set 40 hours as the upper end
of reasonableness for EAJA fees).
The Commissioner also argues that the hours claimed by Plaintiff for preparation of the
opening brief is excessive because the case did not involve novel issues and because Plaintiff did
not raise new authority in his argument. On the contrary, Plaintiff raised five issues on appeal and
proffered extensive case law, citing to over 30 cases alone in his reply brief. In light of the relatively
lengthy administrative record of 889 pages, the Court finds that Plaintiff’s attorney could reasonably
have spent substantial hours reviewing the record and requiring additional time to review the
necessary facts in drafting an opening brief and reply brief.
The Commissioner further argues that the hours claimed by Plaintiff are excessive because,
the issues he raises – RFC, consideration of combination of impairments, credibility assessment,
obesity listing, and a step five finding – are issues that his attorney regularly litigates. However,
even accepting the Commissioner’s statement as true, the Court takes notice that in a case where
Plaintiff’s attorney raised nearly identical issues, the court awarded Plaintiff’s attorney 64.9 hours.
See Copeland, No. 2:11-CV-363, 2012 WL 4959482, at *2 (awarding 64.9 hours of attorney time
in a case in which Plaintiff’s attorney raised claims challenging the ALJ’s step five finding and

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credibility assessment). In addition, even if Plaintiff’s attorney is an experienced Social Security
advocate, “he must conduct new research every time a case is presented, which research is often
time-consuming.” Jenkins, 544 F. Supp. 2d at 743. Therefore, the Court cannot conclude that
Plaintiff is not entitled to the requested attorney hours, simply because his attorney has previously
raised and argued the issues presented in this case. See id. (reasoning that simply because plaintiff’s
counsel has researched a Social Security issue before does not mean that he need not do so again).
Finally, the Commissioner challenges the hours Plaintiff seeks for a supervising attorney’s
work on this case. However, courts have long recognized the propriety of billing for junior and
senior attorney hours in EAJA fee requests. See Copeland, 2:11-CV-363, 2012 WL 4959482, at *2
(N.D. Ind. Oct.17, 2012) (citing Reed v. Astrue, 08–5604, 2010 WL 669619, at *3-4 (N.D. Ill.
Feb.19, 2010) (“It is entirely appropriate (and indeed reflects the realities of the market) that a senior
attorney will guide and advise a junior attorney rather than take the laboring oar with respect to
researching and drafting briefs.”)). “Review by a senior attorney ensures that the quality of the brief
is high and that necessary revisions are made before the brief is filed with the Court.”
Kinsey-McHenry, No. 2:12-CV-332, 2014 WL 1643455, at *3. Crucially, the Commissioner does
not assert that the work by the senior attorney was duplicative or redundant. See, e.g., Perkins v.
Colvin, 10-CV-2204, 2013 WL 6124333, at *6, n. 6 (C.D. Ill. Nov.21, 2013).
Taking into account that Plaintiff’s request for attorney hours is consistent with previous
awards given in the Northern District of Indiana for work performed in similar Social Security
litigation, the Court finds that Plaintiff has demonstrated that his request for 62.8 attorney hours and
1.5 hours of legal assistant time is reasonable.

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C.

Supplemental Request

Plaintiff’s attorney represents that he spent 1.7 hours drafting his EAJA reply brief. At the
requested hourly rate of $191.25, this amounts to a supplemental fee request of
$325.12.Accordingly, the supplemental request will be incorporated into Plaintiff’s EAJA award.
III.

Conclusion
For the foregoing reasons, the Court hereby GRANTS Plaintiff’s Motion for Attorneys’ Fees

Under the Equal Access to Justice Act [DE 35] and ORDERS that Plaintiff is awarded attorney fees
in the total amount of $12478.12 pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. The
award shall fully and completely satisfy any and all claims for fees, costs, and/or expenses that may
have been payable to Plaintiff in this matter pursuant to the Equal Access to Justice Act, 28 U.S.C.
§ 2412(d).
Any fees paid belong to Plaintiff and not her attorney and can be offset to satisfy a
pre-existing debt that Plaintiff owes the United States. Astrue v. Ratliff, 560 U.S. 586 (2010). If the
Commissioner can verify that Plaintiff does not owe any pre-existing debt subject to the offset, the
Commissioner will direct that the award be made payable to Plaintiff’s attorney pursuant to the
EAJA assignment duly signed by Plaintiff and her attorney.
SO ORDERED this 18th day of May, 2016.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record.

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