STALEY v. COLVIN

Filing 48

ORDER ON PLAINTIFF'S MOTION FOR ATTORNEY'S FEES - 39 Motion for Attorney Fees is GRANTED. Staley's counsel is awarded $15,8463 in attorney's fees, to be paid directly to counsel within 70 days. If during this time the Com missioner discovers that Staley owes an outstanding debt to the government, the Commissioner should file a statement with the Court, along with supporting evidence of the debt, that the Commissioner will exercise the right of offset. Because the Court resolved the EAJA fee petition without addressing the novel issue of disregarding assignments, 46 Motion for Oral Argument is DENIED. See Order for details. Signed by Magistrate Judge Tim A. Baker on 5/18/2017. (LBT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
BETH STALEY,
Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.

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No. 4:15-cv-00178-TAB-RLY

ORDER ON PLAINTIFF’S MOTION FOR ATTORNEY’S FEES
Plaintiff Beth Staley’s petition for attorney’s fees under the Equal Access to Justice Act
seeks an award of $13,718 for 72.2 hours calculated at an hourly rate of $190. The
Commissioner opposes Staley’s petition, arguing the requested award is unjust. The
Commissioner argues the Court should reduce the requested EAJA award by 10.3 hours, reduce
the hourly rate by $4.10, and pay the award directly to Staley, not to her counsel. Staley
requested oral argument [Filing No. 46], but this is not necessary. Staley’s EAJA fee request is
reasonable, and for reasons explained below, the Court grants Staley’s EAJA fee request. [Filing
No. 39.]
1. Staley’s attorney’s time was reasonably expended
The Commissioner argues that 10.3 hours of the 72.2 hours of attorney time billed is
excessive. The Commissioner contends that despite the routine nature of this case, Staley’s
attorney billed for abnormally large amounts of time. The Commissioner takes issue with three
aspects of time expended by Staley’s attorney: 22.6 hours to review the record and prepare the
statement of facts, 25.3 hours to research and draft the opening brief, and 0.3 hours to prepare a

motion for an extension of time. The Commissioner asks that the Court reduce the number of
hours spent on the briefs by 10 hours and to deny the 0.3 hours spent on the extension.
The Commissioner argues the Court should cut 10 hours off Staley’s time billed in this
case because hours over 60 are not permissible. For this proposition, the Commissioner relies on
Schulten v. Astrue, No. 08 C 1181, 2010 WL 2135474, at *6 (N.D. Ill. May 28, 2010), in which
the court found that 40-60 hours falls within the “permissible range” of hours of attorney work.
However, the Schulten court explained its finding does not suggest an award is reasonable (or
unreasonable) simply because it is within this range. Id. Schulten does not stand for cutting off
Staley’s attorney’s fees at 60 hours. To illustrate Schulten’s latter point, Staley points to Buis v.
Colvin, No. 1:13-CV-00878-RLY, 2015 WL 6393937, at *9 (S.D. Ind. Oct. 22, 2015), in which
the court found that 105.5 hours, well beyond 60 hours, of attorney time expended was
reasonable under EAJA. In Buis, the court approved 45.05 hours for the opening brief and 25
hours for the reply brief, which it found were reasonable. Id. at *7-8.
Likewise, the Court will not reflexively cut off the hours billed in this case at 60 hours.
The Commissioner makes much of the fact that record on appeal was only 781 pages, with only
approximately 550 pages of medical evidence. But as Staley contends, 781 pages is not a small
record. See e.g., Townsend v. Colvin, No. 2:12-CV-516-PRC, 2014 WL 6617641, at *2 (N.D.
Ind. Nov. 18, 2014) (“a 653–page administrative record is by no means short”). “The difficulty
with social security appeals lies … in the application of the law to the facts.” Id. Staley agrees
her attorney spent significant time working on the facts and going through the medical records.
This time was critical to her success, because “in order to prevail, the Plaintiff must bring the
evidence to the Court’s attention.” Id. In fact, Staley was allowed to file an oversized brief of 52

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pages, of which, 24 pages consisted of the facts and procedural history. 1 Staley set forth a
meaningful context to examine the issues set forth in her oversized brief. Staley raised four
issues and the Commissioner fails to identify any factual or procedural background that Staley
should have omitted. See Hochgesang v. Colvin, No. 1:14-CV-2044-DKL-RLY, 2015 WL
7288628, at *3 (S.D. Ind. Nov. 16, 2015) (“Defendant has failed to identify any weak argument
that she thinks should not have been made.”). A 60-hour ceiling does not exist, and the hours
billed for reviewing the record and drafting the factual and procedural background are
reasonable.
As for the 0.3 hours billed for the motion for an extension of time, the Court also finds it
is reasonable. The Commissioner argues that courts have disallowed billing the Commissioner
for time spent preparing a motion for extension of time. Holland v. Barnhart, No. 02 C 8398,
2004 WL 419871, at *2 (N.D. Ill. Feb. 3, 2004). However, courts have likewise approved fees
for preparing a motion for an extension of time over the Commissioner’s objection. DeHart v.
Colvin, No. 1:12-CV-00861-MJD, 2013 WL 6730736, at *2 (S.D. Ind. Dec. 19, 2013). The
results from case law differ because the amount of the EAJA fee award is a matter of the Court’s
discretion. Buis, 2015 WL 6393937, at *5. In this case, Staley requested only one extension of
time and spent only 18 minutes to do so. The Commissioner takes no issue with the actual time
spent on the motion. Compared to the 72.2 hours Staley’s attorney billed for the case, this time
is reasonably included in the EAJA fee award.

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Staley raised four issues in her opening brief, errors at step two, errors at step three, errors with
the Residual Functional Capacity, and that the ALJ’s ultimate finding was not supported by
substantial evidence. The Commissioner argues these issues were not so complex or novel as to
require such a long brief, but the Court approved an oversized brief and will not revisit the issue.
[Filing No. 19.]
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The Court thus finds that counsel for Staley expended a reasonable amount of time in this
case. The discussion of facts and procedural background in the briefing was reasonable, as was
the single request for an extension of time. Thus, Staley’s EAJA fee award includes all 72.2
hours.
2. Staley’s attorney’s billing rate should not be reduced
The Commissioner argues that Staley’s attorney’s hourly rate of $190 should be reduced
by $4.10 to more accurately reflect the prevailing market rate. The Commissioner contends that
this reduction is necessary so that Staley’s attorney’s hourly rate is based on the midwest market,
rather than the national market. However, the Commissioner admittedly points out that courts
have used both national and regional markets, “without clear preference for either.” Seabron v.
Astrue, 11-C-1078, 2012 WL 1985681, at *4 (N.D. Ill. June 6, 2012). The Commissioner argues
Staley nevertheless presented no evidence that fees based on the national market is more
appropriate.
In reply, Staley points to Smith v. Colvin, No. 1:12-CV-320, 2013 WL 6148100, at *2
(N.D. Ind. Nov. 22, 2013), in which the Commissioner made a nearly identical argument—that
fees should be calculated based on the “Midwest Urban” average, rather than the “All Urban”
average, which was a $3.83 difference. In Smith, the court refused to reduce the requested
hourly rate, finding it was unwarranted because the Seventh Circuit has no preference, other
attorneys use the same calculation, and the amount was relatively nominal. Id. Smith is directly
on point. Staley submits the affidavit of an Indianapolis attorney practicing Social Security law,
which states that $190 is “below the hourly rates charged by Indianapolis attorneys of
comparable skill, experience, and reputation,” but it is an amount consistent with rates under
EAJA. [Filing No. 39-3.] Moreover, the nominal difference of $4.10 does not make the

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requested rate of $190 stand out as unreasonable. Thus, Staley’s EAJA award is based on the
hourly rate of $190.
3. EAJA fees should be paid directly to Staley’s attorney
Staley asks the Court to make any EAJA fee award directly payable to her attorneys
because Staley assigned any attorney fees and costs awarded to her attorneys. [Filing No. 39-4.]
However, the Commissioner requests the Court to instead award fees directly to Staley “with the
contingency that if counsel for Defendant can verify that Plaintiff owes no pre-existing debt
subject to offset, the Commissioner will direct that the award be made payable to Plaintiff’s
attorney.” [Filing No. 41, at ECF p. 7 (citation omitted).]
The type of contingency requested by the Commissioner is reasonable, as it is essentially
a recitation of case law. “[I]f there is an assignment, the only ground for the district court’s
insisting on making the award to the plaintiff is that the plaintiff has debts that may be prior to
what she owes her lawyer.” Mathews-Sheets v. Astrue, 653 F.3d 560, 565 (7th Cir. 2011). The
Commissioner seeks to suspend the decision of whether to award EAJA fees directly to counsel
because she has not yet checked the status of any prior debts owed by Staley. However, the
Commissioner provides no evidence that Staley has any prior debts. The Commissioner does not
indicate when an inquiry of whether Staley has prior debts might happen. The approaches taken
by the courts when fees are assigned and prior debts are unknown have not always been
consistent. 2 Seemingly, the most practical way to address this is to provide the Commissioner 70

2

On one hand, courts have found that with evidence of an assignment and without evidence of a
prior debt, EAJA fees are paid directly to counsel. E.g., Southerland v. Colvin, No. 1:14-CV01177-TWP-MJD, 2016 WL 233613, at *2 (S.D. Ind. Jan. 19, 2016); Strode v. Astrue, No. 1:09CV-64-WTL-TAB, 2011 WL 2731339, at *2 (S.D. Ind. July 13, 2011). Other decisions have
found that despite an assignment, EAJA fees should be paid directly to plaintiff unless the
Commissioner determines no pre-existing debt exists. E.g., Ledbetter v. Colvin, No. 1:13-cv01173-SEB-TAB, 2015 WL 1885105, at *1 (Apr. 23, 2015).
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days to investigate whether a debt is owed, issue a check, or to file an appeal. See e.g., Ledbetter
v. Colvin, No. 1:13-cv-01173-SEB-TAB, 2015 WL 1885105, at *2 (Apr. 23, 2015) (providing
the Commissioner 70 days to submit payment); see also Orr v. Astrue, No. 1:11-CV-01471TWP-MJD, 2013 WL 1840471, at *3 (S.D. Ind. May 1, 2013) (“the Commissioner will be
afforded a reasonable period of time after the fees have been awarded to the claimant to pay the
fees directly to the claimant’s attorney”).
Staley writes extensively on whether the Court is authorized to disregard Staley’s
assignment. However, the Court need not go down this path. The Court is not awarding EAJA
fees directly to Staley. Rather, the Court will offset the assignment to counsel if the
Commissioner shows evidence of a pre-existing debt within the time allowed.
Accordingly, the Court grants Staley’s petition for attorney’s fees. [Filing No. 39.]
Staley’s counsel is awarded $15,846 3 in attorney’s fees, to be paid directly to counsel within 70
days. If during this time the Commissioner discovers that Staley owes an outstanding debt to the
government, the Commissioner should file a statement with the Court, along with supporting
evidence of the debt, that the Commissioner will exercise the right of offset. Because the Court
resolved the EAJA fee petition without addressing the novel issue of disregarding assignments,
Staley’s motion for oral argument [Filing No. 46] is denied.
Date: 5/18/2017
_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana
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Staley’s petition originally requested $13,718 [Filing No. 39], but the Commissioner’s
challenge resulted in an additional 11.2 hours, amounting in an additional $2,128 [Filing No. 45,
at ECF p. 20] in fees. The time spent preparing the reply brief is reasonable because it included
three issues and extensively addressed the novel issue of whether the Court may disregard
assignments. The EAJA fee award is thus increased to $15,846.
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Distribution:
Emily Skutch Cohn
SOCIAL SECURITY ADMINISTRATION
[e-mail]
Mahesha P. Subbaraman
SUBBARAMAN PLLC
[e-mail]
Adriana Maria de la Torre
THE DE LA TORRE LAW OFFICE LLC
[e-mail]
Debra G. Richards
UNITED STATES ATTORNEY'S OFFICE
[e-mail]
Kathryn E. Olivier
UNITED STATES ATTORNEY'S OFFICE
[e-mail]

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