Witt v. Commissioner of Social Security

Filing 29

OPINION AND ORDER GRANTING 26 MOTION for Attorney Fees Under the Equal Access to Justice Act by Plaintiff Tamara S Witt. Plaintiff AWARDED attorney fees in the total amount of $10,615.45 pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. Signed by Magistrate Judge John E Martin on 5/31/16. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
TAMARA S. WITT,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

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CAUSE NO.: 2:14-CV-443-JEM

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OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion for Attorneys’ Fees Under the Equal
Access to Justice Act [DE 26], filed by Plaintiff on May 4, 2016. On May 18, 2016, the
Commissioner filed a response, and on May 24, 2016, Plaintiff filed a reply.
I.

Procedural Background
On February 5, 2016, 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 54.6 hours of work at a rate of $184.00 per hour, and 1.0 hours of legal staff fees at $95.00
per hour, for a total of $10,045.05 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 does not argue that her position was 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 her 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 initially argued that a national prevailing market rate should apply in this case.
However, in her reply, Plaintiff stated that she agrees with the Commissioner that the Court should
apply a regional prevailing market rate based on the Chicago Consumer Price Index. 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 [her] 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.
Taking into account the parties’ agreement that the regional prevailing market rate should
be applied in this case based on the Chicago Consumer Price Index, the Court in its discretion finds
that the Chicago Consumer Price Index is the appropriate. Therefore, Plaintiff has justified her

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requested hourly rate of $184.00 per hour for attorney’s fees and $ 95.00 per hour for legal assistant
fees.
B.

Reasonableness of Hours Expended

The Commissioner contests the 54.6 attorney hours claimed by Plaintiff. The Commissioner
specifically argues that Plaintiff should not be awarded more than 30 hours in attorney’s fees
because the Commissioner offered to remand the case at that point. Plaintiff counters that the 54.6
hours she claims is within the 40-60 hour reference range for Social Security litigation in the
Northern District of Indiana and Seventh Circuit for EAJA purposes, and that the work she spent
after the Commissioner offered to remand the case should be included in an award because Plaintiff
was not only seeking a remand, but also an award of benefits.
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 54.6 attorney hours and 1.0 legal
staff hours spent on various tasks related to her appeal. The log included a twenty minute telephonic
meeting between Plaintiff and her attorney prior to filing her petition for judicial review to explain
appellate procedure and the attorney fee arrangement; 33.7 hours for reviewing the 446-page

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administrative record and preparing the opening brief; 2.5 hours reviewing and editing the opening
brief; 3.8 hours preparing and editing the reply brief; 1.1 hours preparing the instant EAJA
application; and assorted hours for preparation of a sur-reply and other tasks related to Plaintiff’s
appeal.
The Commissioner objects to the hours Plaintiff claims after the Commissioner offered to
remand the case. The Commissioner argues that because the Court found that the terms of the
Commissioner’s proposed remand language adequately reflected the agreed upon errors in the ALJ’s
decision, attorney hours spent on the case after the offer to remand were unreasonably expended and
unnecessary. However, much of Plaintiff’s brief and reply focused on her request for an award of
benefits, not remand. Although the Court ultimately adopted the Commissioner’s proposed remand
language, it also ruled on Plaintiff’s request for benefits. Therefore, the case did not end at the
Commissioner’s offer to remand and the work Plaintiff’s attorneys spent after the offer was not
unnecessary, and must be considered part of the case as a whole. See I.N.S. v Jean, 496 U.S. 154,
162 (1990) (finding that the EAJA favors treating a case as an inclusive whole, “rather than as
atomized line-items”). Moreover, the Court finds that the 54.6 hours Plaintiff claims is consistent
with Social Security ligation in the Northern District of Indiana and Seventh Circuit. See Copeland
v. Astrue, No. 2:11-CV-363, 2012 WL 4959482, at *2 (N.D. Ind. Oct. 17, 2012) (opining that 40 to
60 hours is the standard range of attorney hours for Social Security litigation in the Seventh Circuit).
The Commissioner also argues that the hours claimed by Plaintiff for preparation of the
opening brief and review of the case 446-page record are excessive. However, the Commissioner
offers no support for that argument or cases for the Court to compare this one too. Moreover, the
Commissioner overlooks the fact that independent of the length of the case record, Plaintiff’s request

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for relief in this case was twofold: remand or an award of benefits. The Court finds that Plaintiff’s
attorney could have reasonably been expected to expend substantial time reviewing the record for
support for both requests and drafting Plaintiff’s brief and reply.
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 and “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.” Copeland, 2:11-CV-363, 2012 WL
4959482, at *2 (N.D. Ind. Oct.17, 2012) (quoting Reed v. Astrue, 08–5604, 2010 WL 669619, at *34 (N.D. Ill. Feb.19, 2010). Moreover, “[r]eview 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 v. Colvin, 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 her request for 54.6 attorney hours and
1.0 hours of legal assistant time is reasonable.
C.

Supplemental Request
Plaintiff’s attorney represents that she spent 3.71 hours drafting the reply brief. At the

requested hourly rate of $184.00, this amounts to a supplemental fee request of $570.40.
Accordingly, the supplemental request will be incorporated into Plaintiff’s EAJA award.

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III.

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

Under the Equal Access to Justice Act [DE 26] and ORDERS that Plaintiff is awarded attorney fees
in the total amount of $10,615.45 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 31st 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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