CHAMBERS v. ASTRUE

Filing 33

ENTRY ON APPLICATION FOR ATTORNEY FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT - Ms. Chambers's Petition for Attorney Fees Under the Equal Access to Justice Act (Dkt. 25 ) is hereby GRANTED in part and DENIED in part. For the reasons set forth, the Court finds the amount of $8,289.45 in attorney fees plus $350.00 in costs for a total award of $8,639.45, to be reasonable. The Court awards to Ms. Chambers attorney's fees and costs under 28 U.S.C. § 2412(d) in the amount of $8,639.45, and the Commissioner shall direct that the award be made payable to Ms. Chambers's counsel consistent with the assignment in the record (Dkt. 26-1). Signed by Judge Tanya Walton Pratt on 5/16/2013. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
GWYNNELL D. CHAMBERS,
Plaintiff,
v.
MICHAEL J. ASTRUE Commissioner of the
Social Security Administration,
Defendant.

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Case No. 1:10-cv-01239-TWP-DKL

ENTRY ON APPLICATION FOR ATTORNEY FEES
UNDER THE EQUAL ACCESS TO JUSTICE ACT
I. BACKGROUND
This matter is before the Court on the motion by Plaintiff Gwynnell D. Chambers (“Ms.
Chambers”) for an award of attorney’s fees and expenses under the Equal Access to Justice Act,
28 U.S.C. § 2412(d) (“EAJA”). Ms. Chambers applied for Disability Insurance Benefits (“DIB”)
based on severe physical impairments. Her application was denied initially, on reconsideration,
and by an Administrative Law Judge (“ALJ”). The Appeals Council denied review, and Ms.
Chambers prevailed on judicial review when this Court remanded her case for further
administrative proceedings under sentence four of 42 U.S.C. § 405(g). For the reasons discussed
below, Ms. Chambers’s Petition for Attorney Fees Under the Equal Access to Justice Act (Dkt.
25) is GRANTED in part and DENIED in part.
II. DISCUSSION
The EAJA provides that a successful litigant against the federal government is entitled to
recover attorney’s fees if: (1) she was a “prevailing party”; (2) the government’s position was not

“substantially justified”; (3) there existed no special circumstances that would make an award
unjust; and (4) she filed a timely application with the district court. 28 U.S.C. § 2412(d)(1)(A),
(B); Cunningham v. Barnhart, 440 F.3d 862, 863 (7th Cir. 2006). Ms. Chambers was the
prevailing party and her fee application was filed timely. Her counsel seeks compensation for
38.50 hours of attorney time at the rate of $168.87 per hour for a sub-total of $6,501.49, plus
reimbursement of $350.00 for the filing fee, for a total of $6,851.49. Ms. Chambers also asks for
an additional $3,575.95 for the preparation of the reply brief for her EAJA petition, which
represents 20.70 hours at a rate of $172.75 per hour for work done in 2011. The Commissioner,
however, opposes the attorney’s fee and contends that the Agency was substantially justified in
its litigation position and the fee requested is unreasonable. Alternatively, the Commissioner
asks the Court to reduce the award because the hourly rate sought is unreasonable.
A.

The Commissioner’s position was not substantially justified.
The Commissioner has the burden of establishing that his position was substantially

justified. Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir. 2004). The Supreme Court has
defined “substantially justified” to mean “justified to a degree that could satisfy a reasonable
person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). In Pierce, the Court emphasized that
“a position can be justified even though it is not correct . . . if it has a reasonable basis in law and
fact.” Id. at 566 n.2; see also Mogg v. Astrue, 266 Fed. Appx. 470 (7th Cir. 2008). To evaluate
whether the government’s position was substantially justified, the court looks at the agency’s
pre-litigation position and then makes one determination as to the entire civil action. Bassett v.
Astrue, 641 F.3d 857, 860 (7th Cir. 2011).
In finding that this case should be remanded, the Court noted that the ALJ did not
adequately apply and analyze the factors in 20 C.F.R. § 404.1527(d) after determining that Ms.

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Chambers’s treating physician’s opinion was not entitled to controlling weight. Dkt. 24 at 15-18.
The Commissioner argues that this finding is “primarily an articulation error that does not equate
with a lack of substantial justification.” See Cunningham v. Barnhart, 440 F.3d 862, 864 (7th
Cir. 2006). Typically, it takes something more egregious than just a run-of-the mill error in
articulation to make the Commissioner’s position unjustified—something like the ALJ ignoring
or mischaracterizing a significant body of evidence, or the Commissioner’s defense of the ALJ’s
opinion on a forbidden basis. Bassett, 641 F.3d at 860.
In this case, the reasons for the Court’s remand were more than an articulation error. The
ALJ failed to follow longstanding agency regulations and judicial precedent which requires that
an ALJ apply the factors in 20 C.F.R. § 404.1527(d)(2) once he has decided not to give the
treating physician’s opinion controlling weight. See Larson v. Astrue, 615 F.3d 744, 751 (7th
Cir. 2010). Social Security Ruling 96-2p states that even where an ALJ finds that a treating
physician’s opinion is not entitled to controlling weight, the opinion is still entitled to some level
of deference based upon an analysis of these factors. See Thompkins v. Astrue, No. 09 C 1339,
2011 WL 3325795, at *2 (N.D. Ill. Aug. 2, 2011) (“When an ALJ decides not to give controlling
weight to a treating physician’s opinion, he must still assign it a specific weight.”). This is not
merely a failure to articulate on the part of the ALJ, but rather a failure to perform a necessary
analysis as required by the regulations and Seventh Circuit case law. As such, the Court finds
that the Commissioner’s position was not substantially justified.
B.

The fee increase is reasonable.
Next, the Commissioner asks the Court to reject the amount of Ms. Chambers’s

application for EAJA fees and to award any fees at a reduced rate and amount. Under the EAJA,
“attorney fees shall not be awarded in excess of $125 per hour unless the court determines that

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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.” 28 U.S.C. § 2412(d)(2)(A)(ii).
“The $125 rate is a presumptive ceiling; to justify a higher rate the plaintiff must point to
inflation or some other special factor.” Mathews-Sheets v. Astrue, 653 F.3d 560, 563 (7th Cir.
2011).
Ms. Chambers’s counsel has calculated an increase in the cost of living using the
Midwest Urban Consumer Price Index (“CPI”) for January 2011, arriving at a rate of $168.87
per hour. The Commissioner argues that Ms. Chambers’s counsel has failed to show that
inflation has increased his cost of providing adequate legal service to a person seeking relief
against the government and that, without the enhanced hourly rate, a competent lawyer in the
geographic area would not handle such a Social Security case.
A cost of living increase is not automatically added to the statutory fee. Mathews-Sheets,
653 F.3d at 563. However, an attorney is not required to show both that inflation justifies a
higher fee and a special factor such as the unavailability of lawyers able to handle such cases at a
lower rate in the relevant geographic area. Id. at 565. Ms. Chambers’s counsel has stated that
his hourly rate for non-Social Security cases is $190.00, and will be increasing to $200.00 per
hour. He additionally states that if he were only permitted to recover $125.00 per hour under the
EAJA, he would have to reconsider doing Social Security work in federal court. The Court finds
that Ms. Chambers’s counsel has shown that inflation has had an impact upon not just his social
security work, but his practice as a whole as reflected by his increasing hourly rates. Therefore,
the Court finds that the increase above the statutory amount is reasonable, and Ms. Chambers is
entitled to the requested hourly rate of $168.87.

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C.

The fees requested for litigating the EAJA fee petition are excessive and
unreasonable.
In her Reply, Ms. Chambers also requests an additional amount for time spent preparing

the EAJA reply brief, constituting 20.70 hours of additional work at an hourly rate of $172.75,
based upon the December 2011 CPI.

This would bring the total requested fee award to

$10,077.41. In finding that a prevailing litigant may recover the costs of litigating an EAJA fee
petition, the Supreme Court has stated that “[t]he EAJA . . . provides district courts discretion to
adjust the amount of fees for various portions of the litigation . . . . The purpose and legislative
history of the statute reinforce our conclusion that Congress intended the EAJA to cover the cost
of all phases of successful civil litigation addressed by the statute.” Comm’r, I.N.S. v. Jean, 496
U.S. 154, 165-66 (1990).
While recognizing that a prevailing party may be awarded fees associated with litigating
an EAJA petition, the Court finds that 20.70 hours spent on a reply brief is unreasonable,
particularly considering that counsel only expended 38.5 hours of representation on the entire
social security appeal itself. See Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (hours that are
excessive, redundant or otherwise unnecessary may be excluded from a fee petition). Ms.
Chambers’s counsel himself admits that “the number of hours spent on this reply are
unquestionably much higher than normal,” but justifies this based upon the novelty of the issues
raised in the Commissioner’s Response and the importance of the decision to other attorneys
representing social security disability litigants. Dkt. 30 at 14. While the issues argued in the
brief may be of importance to “the Social Security disability attorneys throughout the Seventh
Circuit,” the purpose of the EAJA is to benefit the prevailing party, not the social security
disability bar as a whole. In addition, the Commissioner frequently argues in opposition to
EAJA petitions that its position was substantially justified and that the prevailing party failed to
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justify a rate above the statutory maximum, so the issues raised by the Commissioner in this case
are not particularly novel. Therefore, the Court finds that 10.35 hours is a reasonable number of
hours spent preparing the reply brief for Ms. Chambers’s EAJA petition, and that the $172.75
rate for 2011 is justified for the reasons stated above. Ms. Chambers is entitled to an additional
$1,787.96 in fees associated with litigating her EAJA petition.
III. CONCLUSION
Ms. Chambers’s Petition for Attorney Fees Under the Equal Access to Justice Act (Dkt.
25) is hereby GRANTED in part and DENIED in part. For the reasons set forth above, the
Court finds the amount of $8,289.45 in attorney fees plus $350.00 in costs for a total award of
$8,639.45, to be reasonable. The Court awards to Ms. Chambers attorney’s fees and costs under
28 U.S.C. § 2412(d) in the amount of $8,639.45, and the Commissioner shall direct that the
award be made payable to Ms. Chambers’s counsel consistent with the assignment in the record
(Dkt. 26-1).

SO ORDERED.
05/16/2013
Date: _____________

DISTRIBUTION:

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

Timothy J. Vrana
[e-mail]
Thomas E. Kieper
UNITED STATES ATTORNEY’S OFFICE
[e-mail]

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