Kinsey v. Commissioner of Social Security

Filing 32

OPINION AND ORDER granting 27 Plaintiffs Motion for Attorney Fees at an hourly rate different than requested and ORDERS that Plaintiff is awarded attorney fees in the total amount of $15,138.06 pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. Signed by Magistrate Judge Paul R Cherry on 8/9/17. (nal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DESIREE KINSEY,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.

)
)
)
)
)
)
)
)
)

CAUSE NO.: 2:16-CV-69-PRC

OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion for Attorney’s Fees Under the Equal
Access to Justice Act [DE 27], filed by Plaintiff Desiree Kinsey on June 21, 2017. The
Commissioner filed a response on July 18, 2017, and Plaintiff filed a reply on July 28, 2017.
On February 23, 2016, Plaintiff filed a Complaint with this Court, seeking review of the
Commissioner’s final decision on her application for social security supplemental security income
benefits. On June 21, 2016, Plaintiff filed an Opening Brief. On June 27, 2017, the Commissioner
filed a response, and on October 18, 2016, Plaintiff filed a reply. On March 24, 2017, the Court
granted the relief sought by Plaintiff, reversing the ALJ’s decision, remanding for further
proceedings, and directing the Clerk of Court to enter judgment in favor of Plaintiff.
On June 30, 2017, Plaintiff timely filed the instant motion, seeking attorney fees under the
Equal Access to Justice Act (“EAJA”) in the amount of $15,486.35 for 1.9 hours of legal assistant
time1 at an hourly rate of $95.00 and 79.1 hours of attorney time at an hourly rate of $193.50 (for
June 2016).2

1

2

The EAJA Itemization only supports 1.4 hours of legal assistant time. See (ECF 27-1).

Although Plaintiff represents in her brief that this amounts to $15,485.99, the calculation results in a total of
$15,486.35.

As an initial matter, the Court notes that the parties agree that, because Plaintiff requested
in her brief only 79.1 of the 82.85 hours set out in the EAJA Itemization attached to the brief (a
difference of 3.75 hours), Plaintiff should only recover fees for 79.1 hours. Accordingly, the Court
reduces the number of hours for June 2016 (when the most work was done) by 3.75 hours, from
62.05 hours to 58.30 hours.
There is a statutory cap of an hourly rate of $125.00 for reasonable attorney fees under the
EAJA. 28 U.S.C. § 2412(d)(2)(A)(ii). However, the statute allows for a cost of living adjustment
when “the court determines that an increase in the cost of living or a special factor, such as the
limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.” Id.
“Courts should generally award the inflation-adjusted rate according to the [Consumer Price Index],
using the date on which the legal services were performed.” Sprinkle v. Colvin, 777 F.3d 421,428
(7th Cir. 2015).
In this case, Plaintiff proposes using the Consumer Price Index for the U.S. city average. In
her response brief, the Commissioner argues that the hourly rate should be based instead on the
Consumer Price Index for the Chicago-Gary-Kenosha region, which is a subset of the Midwest
region. The Commissioner reasons that Plaintiff resides in Lake County, Indiana, the Court is
located in Lake County, and Plaintiff’s counsel is located in Cook County, Illinois, all of which are
in the Chicago-Gary-Kenosha region.
It is within the Court’s discretion to choose between the U.S. city average or the Midwest
region rate (or an identified subset of that rate). See Wright v. Berryhill, 1:14cv8163, 2017 WL
2588218, at *2 (N.D. Ill. June 14, 2017) (citing Colvin, 777 F.3d at 428 n. 2). The Court finds that
the CPI for Chicago-Gary-Kenosha is most appropriate. See Harrington v. Berryhill, 2017 WL

2

2502456, at *1 (S.D. Ind. June 9, 2017) (applying the Midwest urban market CPI for the
Indianapolis market); Pollard v. Colvin, 1:14cv345, 2015 WL 846424, at *2-3 (S.D. Ind. Feb. 26,
2015) (considering “several charts displaying the standard hourly billing rates for attorneys in the
Indianapolis-Carmel, Indiana statistical area”).
Thus, the cost of living adjustment based on the CPI for Chicago-Gary-Kenosha results in
an adjusted hourly rate of $181.89 for February 2016; $184.21 for June 2016; $184.35 for October
2016; and $186.39 for April 2017.
This results in attorneys fees totaling $14,575.72 as follows: $18.19 in February 2016 (.1
hour at $181.89/hr.); $10,739.44 in June 2016 (58.30 hours at $184.21/hr.); $3,631.70 in October
2016 (19.7 hours at $184.35/hr.); and $186.39 in April 2017 (1 hour at $186.39/hr.). To that, the
Court adds $429.34 for 2.3 hours of attorney time spent on the reply brief in July 2017 at the
adjusted hourly rate of $186.67 for June 2017 (the most recent month available) for the ChicagoGary-Kenosha area, for a total of $15,005.06. Plaintiff’s evidence supports 1.4 hours of legal
assistant time. Therefore, the Court further adds $133.00 for 1.4 hours of paralegal work at an hourly
rate of $95.00, for a total fee award of $15,138.06.
The Commissioner also argues that the requested fees are not reasonable and that the Court
should exclude a portion of the 82.85 hours that counsel for Plaintiff spent briefing this case. The
Court has carefully considered the Commissioner’s arguments, including the range of cases cited
by Plaintiff showing that cases average 40-60 hours for a fee petition. The Court finds that, in light
of the size of the administrative record (1675 pages), the fact that this case was previously remanded
by the Court, the number of issues raised in this appeal (law of the case doctrine regarding
headaches, the ALJ’s analysis of the multiple sclerosis diagnosis, the RFC assessment, the weight

3

to a treating physician’s opinion, and the credibility assessment), and the variation in time an
individual attorney may take in reviewing records and drafting briefs, the number of hours spent in
this case, albeit high, is not unreasonable.
The Commissioner also contends that there is a total of 10.85 hours that should be excluded
because Plaintiff provides no description of the tasks performed on the EAJA itemization and, thus,
cannot show that they are reasonable. However, in her reply brief, Plaintiff explains the formatting
of the itemization of each charge, accounting for the 10.85 hours.
Based on the foregoing, the Court hereby GRANTS Plaintiff’s Motion for Attorney’s Fees
Under the Equal Access to Justice Act [DE 27] at an hourly rate different than requested and
ORDERS that Plaintiff is awarded attorney fees in the total amount of $15,138.06 pursuant to the
Equal Access to Justice Act, 28 U.S.C. § 2412.
SO ORDERED this 9th day of August, 2017.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

4