Deboer Lapole v. Commissioner of Social Security

Filing 29

OPINION AND ORDER GRANTING 26 MOTION for Attorney Fees filed by Dawn E. Deboer Lapole. The Court ORDERS that Plaintiff is awarded attorney fees in the total amount of $11,932.60 in fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. Signed by Magistrate Judge Paul R Cherry on 5/24/18. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DAWN E. DEBOER LAPOLE,
Plaintiff,
v.
NANCY A. BERRYHILL,
Deputy Commissioner for Operations,
Social Security Administration,
Defendant.

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CAUSE NO.: 2:17-CV-24-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 26], filed by Plaintiff Dawn E. Deboer Lapole on May 9, 2018.
On January 20, 2017, Plaintiff filed a Complaint seeking judicial review of the
Commissioner’s decision to deny her disability insurance benefits and supplemental security
income. On June 27, 2017, Plaintiff filed an Opening Brief. On August 7, 2017, the Commissioner
filed a response. On August 28, 2017, Plaintiff filed a reply. The Court granted Plaintiff’s request
for remand to the agency on February 14, 2018.
In the instant Motion for Attorneys’ Fees, Plaintiff seeks fees under the Equal Access to
Justice Act (“EAJA”) in the amount of $11,637.39 for 58.5 attorney hours at an hourly rate of
$196.66 and 1.4 legal assistant hours at an hourly rate of $95.00.
On May 17, 2018, Defendant filed a response brief in opposition to Plaintiff’s fee request,
opposing the number of hours as unreasonable and also opposing the hourly rate. Plaintiff filed a
reply on May 23, 2018. In the reply brief, Plaintiff requests an additional 1.5 hours of attorney time
at $196.66 per hour for preparation of that brief. In total, the amount requested is $11,932.60.

First, Plaintiff bears the burden of demonstrating that the requested hours are reasonable.
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). Counsel for the prevailing party should make a
good-faith effort to exclude excessive, redundant, or otherwise unnecessary hours. Id. at 434; 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 and citing
28 U.S.C. § 2412(d)(1)(C))). The amount of the fee award is a matter of discretion for the 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.
Plaintiff correctly identifies that courts within the Seventh Circuit Court of Appeals have
found a reasonable number of hours for work on a social security appeal to range from 40-60 hours.
See, e.g., Copeland v. Astrue, No. 2:11-CV-363, 2012 WL 4959482, at *2 (N.D. Ind. Oct. 17, 2012)
(citing cases); Schulten v. Astrue, No. 08 C 1181, 2010 WL 2135474, at *6 (N.D. Ill. May 28, 2010)
(citing cases). Plaintiff further supports the number of hours claimed by arguing that she raised
numerous legal issues in this case, which required a detailed factual assessment of the administrative
record, and that she spent significant time responding to Defendant’s many arguments raised in the
response brief on the request to remand.
Defendant counters that the issues involved in this case were neither novel nor unique and
that the administrative record was not “excessively long.” Defendant suggests that the number of
hours claimed for preparing the opening brief—36 hours—should be reduced to 20 hours. Defendant
similarly argues that the 16 hours claimed for the reply brief should be reduced to 8 hours, as the
issues in the reply brief were the same issues presented in the opening brief. Defendant also asserts

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that Plaintiff has not justified the time spent by Attorney Schultz in drafting a memorandum in this
case.
Though the legal issues presented in this Social Security case may be frequently raised, the
facts that apply to those legal matters are unique to each case. Plaintiff’s medical history, testimony,
and other evidence of record are entirely her own and have not been seen in this exact combination
before. Though the 644- page administrative record is not the longest record that has been before
this Court, it is also not the shortest, and 644 pages of material necessarily take time to review. The
Court finds that Plaintiff has justified the number of hours spent on the opening brief.
Though the underlying issues may be the same in the opening brief and the reply brief,
Plaintiff, in her reply, responded to Defendant’s arguments raised in the response. Without a clearer
or more precise argument for reducing the hours spent on the reply brief, the Court discerns no
reason to reduce the number of hours by half.
Finally, Plaintiff represents that the normal practice in her counsel’s office is for a senior
attorney to do an initial review of a case to identify the issues to be raised and to prepare a general
outline so that less experienced attorneys focus their energy on relevant issues and draft wellorganized briefs. The itemization of time reports that Attorney Schultz spent 1.5 hours drafting the
memorandum. This Court finds this time to be reasonably expended and not excessive.
Second, there is a statutory cap of an hourly rate of $125.00 for reasonable attorney fees
under the EAJA, established in March 1996. 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

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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). It is within the Court’s discretion
to choose between the U.S. City Average and a regional rate. See Wright v. Berryhill, 1:14cv8163,
2017 WL 2588218, at * 2 (N.D. Ill. June 14, 2017); see also Sprinkle, 777 F.3d at 428 n. 2. In this
case, Plaintiff requests compensation at $196.66 per hour for attorney time, the national rate under
the Consumer Price index for June 2017, the month in which the majority of legal work was
performed by counsel. Defendant requests that the rate be reduced to $189.34, the Chicago region
rate for the same time period. Plaintiff has provided the affidavits of attorneys who provide similar
services. These affidavits support a finding that an hourly rate of $196.66 is reasonable. The Court
finds that Plaintiff’s requested hourly rate is commensurate with counsels’ and counsels’ firm’s
experience. For all these reasons, and contrary to the Commissioner’s assertion that the hourly rate
should be based only on the Chicago region market, the Court finds the hourly rate of $196.66 for
the attorney work provided in June 2017 is appropriate.
Having reviewed the fee petition, the Court finds that the number of hours and the hourly
rates to be reasonable and not excessive in light of the facts and circumstances of this case and
consistent with the range of fee requests in social security litigation before this Court.
CONCLUSION
Accordingly, the Court hereby GRANTS Plaintiff’s Motion for Attorney’s Fees Under the
Equal Access to Justice Act [DE 26] and ORDERS that Plaintiff is awarded attorney fees in the total
amount of $11,932.60 in fees 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

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Commissioner shall direct that the award be made payable to Plaintiff’s attorney pursuant to the
EAJA assignment duly signed by Plaintiff and his counsel.
So ORDERED this 24th day of May, 2018.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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