Hill v. Colvin

Filing 22

REPORT AND RECOMMENDATIONS re 17 MOTION for Attorney Fees filed by Kenneth Lee Hill. Signed by Magistrate Judge Stephanie A Gallagher on 10/5/2015. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

KENNETH LEE HILL,
Claimant,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant

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Case No. GLR-14-2872

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REPORT AND RECOMMENDATIONS
Kenneth Lee Hill has filed a petition for attorney’s fees pursuant to the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412, in the amount of $5,190.43, plus $400.00 in filing fees.
(ECF No. 17). Because Mr. Hill did not consent to a magistrate judge for all proceedings, his
request for attorney’s fees has been referred to me, pursuant to Standing Order 2014-01, for
review and to make recommendations under 28 U.S.C. § 636(b)(1)(B) and Local Rule
301.5(b)(ix). The Commissioner opposed Mr. Hill’s petition for fees. (ECF No. 18). For the
reasons set forth below, I recommend that Mr. Hill’s Motion for Attorney’s Fees be GRANTED
in part and DENIED in part.
BACKGROUND
After being denied Disability Insurance Benefits and Supplemental Security Income at
the administrative level, Mr. Hill appealed the decision to this Court. (ECF No. 1). He was
represented on appeal by a law firm based in New York (“the New York firm”), with the
assistance of local counsel in Maryland. In his motion for judgment on the pleadings, Mr. Hill
raised two primary arguments:

(1) that the ALJ erred in evaluating the medical opinion
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evidence; and (2) that the ALJ erred in assessing the credibility of his subjective complaints.
(ECF No. 11). In addition, on March 24, 2015, the Court alerted the parties to a potential issue
under the Fourth Circuit decision of Mascio v. Colvin, 780 F.3d 632, which was decided on
March 18, 2015, as Mr. Hill’s case was pending. (ECF No. 13). Pertinent to this case, Mascio
held that a restriction to simple or unskilled work in an RFC assessment does not account for a
claimant’s moderate limitation in concentration, persistence, and pace. Id. at 638. The Court
emphasized the distinction between the ability to perform simple tasks and the ability to stay on
task. Id. In the instant case, the ALJ found that Mr. Hill had a moderate limitation in his ability
to maintain concentration, persistence, or pace, but the only mental limitation appearing in his
RFC assessment stated that he would be limited to “tasks that are routine, repetitive, and
unskilled.” (Tr. 32). Accordingly, the Court’s March 24, 2015 letter to the parties granted the
Commissioner additional time to review the case to determine whether consent remand was
required under Mascio, or whether she instead wished to file a supplemental brief addressing the
apparent Mascio issue. (ECF No. 13). The Commissioner filed a supplemental brief on April
20, 2015. (ECF No. 14). Mr. Hill did not file a response. See id.
On April 24, 2015, this Court issued a Report and Recommendations, finding that both of
Mr. Hill’s arguments lacked merit, but recommending remand based on a finding that the ALJ’s
RFC assessment was inadequate under Mascio. (ECF No. 15). On June 2, 2015, United States
District Judge George L. Russell, III adopted the Report and Recommendations, reversed in part
the ALJ’s decision, and remanded the case for further proceedings. (ECF No. 16).
Mr. Hill timely filed the instant Motion for Attorney’s Fees on July 1, 2015. (ECF No.
17). Mr. Hill seeks $5,190.43 for his counsel, which represents 27.70 hours of attorney work
time at an hourly rate of $187.38. Id.

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I. LEGAL STANDARDS
A party who prevails in litigation against the United States is entitled to EAJA attorney
fees if the Commissioner’s position was not substantially justified and no special circumstances
make an award unjust. 28 U.S.C. § 2412(d)(1); Crawford v. Sullivan, 935 F.2d 655, 656 (4th
Cir. 1991). To receive attorney’s fees, the prevailing claimant must submit a fee application and
an itemized statement of fees to the court within 30 days of final judgment. Id. “The Supreme
Court has approved a ‘generous formulation’ to determine who are prevailing parties:
‘[P]laintiffs may be considered ‘prevailing parties’ for attorney’s fees purposes if they succeed
on any significant issue in litigation which achieves some of the benefit the parties sought in
bringing suit.’” Hyatt v. Heckler, 807 F.2d 376, 382 (4th Cir. 1986) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983)).
The Commissioner bears the burden of proving that her position was substantially
justified, thus precluding an award of attorney fees and costs under the EAJA. Thompson v.
Sullivan, 980 F.2d 280, 281 (4th Cir. 1992). The Commissioner’s position must be substantially
justified in both fact and law.

Id.

(“In other words, favorable facts will not rescue the

Commissioner from a substantially unjustified position on the law; likewise, an accurate recital
of law cannot excuse a substantially unjustified position on the facts.”); see also Pierce v.
Underwood, 487 U.S. 552, 562-63 (1988).

When evaluating whether the Commissioner’s

position was substantially justified, the court must examine the Agency’s conduct and posture
both before and during litigation. See Comm’r, I.N.S. v. Jean, 496 U.S. 154, 158 (1990);
Crawford, 935 F.2d at 657.
A substantially justified position is one that is “more than merely undeserving of
sanctions for frivolousness.”

Pierce, 487 U.S. at 566.

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To be substantially justified, the

Commissioner’s position must be “‘justified in substance or in the main’—that is, justified to a
degree that could satisfy a reasonable person.”

Id. at 565.

A court’s ruling against the

Commissioner is not determinative, as the Commissioner “is not automatically liable for
attorney’s fees every time [s]he loses a case.” Crawford, 935 F.2d at 657 (relying on Smith v.
Heckler, 739 F.2d 144, 147 (4th Cir. 1984)).
II. ANALYSIS
The Commissioner objects to Mr. Hill’s request for attorney’s fees, arguing (1) that
attorney’s fees are unwarranted because the Commissioner’s position was substantially justified;
and (2) that even if fees are warranted, the amount sought is unreasonable under the
circumstances presented. First, then, this Court must evaluate whether an award of attorney’s
fees is proper under the EAJA. A party is entitled to EAJA fees if: (1) the claimant is a party
who prevailed in litigation against the United States; (2) the Commissioner’s position was not
substantially justified; (3) no special circumstances make an award unjust; and, (4) the claimant’s
fee application is submitted to the court within 30 days of final judgment and is supported by an
itemized statement. 28 U.S.C. § 2412(d)(1); Crawford, 935 F.2d at 656.
Mr. Hill easily meets three of these four requirements. Regarding the first element of the
statutory test, Mr. Hill qualifies as a prevailing party for purposes of awarding EAJA fees
because of the Supreme Court’s “generous formulation” of who constitutes a prevailing party.
By winning remand of his case, Mr. Hill has succeeded on a significant issue in litigation and has
achieved some of the benefit he sought. With respect to the third element, the parties do not
dispute whether any special circumstances exist that would make an award of attorney’s fees
unjust. Mr. Hill’s request for attorney’s fees is also timely, and therefore satisfies the fourth
element of the statutory test.

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The only question remaining is whether the Commissioner’s position in the case was
substantially justified.

As noted above, the Commissioner’s position must be substantially

justified on both the facts and the law. Thompson, 980 F.2d at 281. This Court remanded this
case not because the facts of this case demand that Mr. Hill receive benefits, but because the ALJ
failed to properly explain how his RFC adequately accounted for his moderate limitation in
concentration, persistence, or pace under Mascio. 780 F.3d at 638; (ECF No. 15). The errors
identified relate to how the ALJ crafted the opinion. Id. at 5 (“At no point in the ALJ’s RFC
assessment did he offer any explanation concerning why Mr. Hill’s moderate difficulties in
concentration, persistence, or pace did not translate into a functional limitation, related to his
ability to stay on task.”). The Commissioner was given the opportunity to determine whether
consent remand was required under Mascio, and declined to do so. See (ECF Nos. 13, 14). The
Commissioner’s argument that her position was substantially justified under pre-Mascio legal
standards is unpersuasive. After Mascio, the Commissioner’s position in this case was not
substantially justified in the law, and an award of EAJA fees is appropriate.
The next question, however, is the amount of EAJA fees reasonable under the
circumstances presented. Specifically, Commissioner contends that Mr. Hill’s counsel should
not receive fees, or should receive reduced fees, because the arguments submitted on his behalf
did not succeed. The United States Court of Appeals for the Fourth Circuit has decided, in the
context of considering a reasonable fee for an EAJA award, that “[u]nsuccessful claims that are
‘distinct in all respects’ from the claims upon which the plaintiff has prevailed ‘should be
excluded in considering the amount of a reasonable fee.” Hyatt v. Barnhart, 315 F.3d 239, 254
(4th Cir. 2002) (citing Hensley v. Eckerhart, 461 U.S. 424 (1983)). Here, Mr. Hill prevailed not
because of his attorneys’ arguments, but because of the intervening Mascio decision. However,

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had his attorneys not pressed his appeal, he would have been unable to avail himself of the
Mascio ruling.
I further note that the $5,190.43 fee sought by Mr. Hill far exceeds the heartland of fees
recently awarded in cases presenting in a similar procedural posture, in which the plaintiff’s
success was directly attributable to the attorney’s arguments. See, e.g., Bragg v. Colvin, Civil
No. SAG-15-152 (Sept. 18, 2015) (awarding fees in the amount of $2,625.00); Flynn v. Colvin,
Civil No. SAG-15-347 (Sept. 17, 2015) (awarding fees in the amount of $1,505.00); Hemp v.
Colvin, Civil No. SAG-14-2855 (Sept. 17, 2015) (awarding fees in the amount of $1,281.37);
Barlow v. Colvin, Civil No. SAG-14-3532 (Sept. 16, 2015) (awarding fees in the amount of
$4,023.60); Smith v. Colvin, Civil No. SAG-14-4030 (Sept. 3, 2015) (awarding fees in the
amount of $1,435.00); Bracey v. Colvin, Civil No. SAG-14-3847 (Sept. 3, 2015) (awarding fees
in the amount of $1,960.00). Given the fact that, here, the limited success of Mr. Hill’s appeal
was entirely unrelated to any of the arguments presented by his counsel, and because a
significant portion of the hours expended were devoted to the presentation of those arguments,
the total fee sought cannot be deemed reasonable. Furthermore, I also note that Mr. Hill’s
Motion for Attorney’s Fees includes hours billed for clerical tasks, which are not compensable
under the EAJA. 1 See Gates v. Barnhart, 325 F. Supp. 2d 1342, 1348 (M.D. Fla. 2002) (quoting
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A review of the fee petitions filed in this Court over the last two years by Mr. Hill’s New York law firm
calls into question the reasonableness of some of the hours billed. In each of twelve fee petitions
reviewed, including the petition in this case, there was an entry for 0.8 hours for “Dictated letter to client
re: appeal/Dictated complaint” and an entry for 1.3 hours for “Prepare EAJA fee petition.” Although this
Court is not privy to the letters sent to the clients regarding the appeal, the complaints filed by the New
York firm in this Court are unnecessarily more complex than the one-page form used by local
practitioners. Similarly, the EAJA fee petitions are near-identical in every case, with the exception of
dates, amounts, and a single paragraph describing the outcome of the case. Given the routine nature of
these documents, it is difficult to see how they would take experienced counsel significant time to
prepare, particularly exactly the same amount of significant time in every case. The remainder of the
billing records appear to reflect, as one would expect, different amounts of time billed in different cases
based upon the complexity of issues presented. In Mr. Hill’s case, however, I also note that counsel billed
8.7 hours for drafting a 9 page statement of facts, after already having spent 4.3 hours outlining the
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Mobley v. Apfel, 104 F. Supp. 2d 1357, 1360 (M.D. Fla. 2000)) (denying compensation for
mailing a complaint and summons); see also Magwood v. Astrue, 594 F. Supp. 2d 557, 563 (E.D.
Pa. 2009) (finding that clerical tasks should be excluded from the total attorney fee under the
EAJA); Chapman v. Astrue, 2:08CV00040, 2009 WL 3764009, at *1 (W.D. Va. Nov. 9, 2009)
(finding “purely clerical tasks are ordinarily a part of a law office’s overhead and should not be
compensated for at all”). Thus, I recommend an award of fees for ten hours of work at the
requested hourly rate of $187.38, for a total fee of $1,873.80, plus the $400.00 filing fee. That
award is reasonable because it fairly compensates counsel for work performed on the appeal,
commensurate with what other lawyers receive in similar cases, without compensating for
clerical work or work attributable to unsuccessful legal positions taken on Mr. Hill’s behalf.
III.

CONCLUSION
Based on the foregoing, I recommend that the Court GRANT in part and DENY in part

Mr. Hill’s Motion for Attorney’s Fees, and award him $1,873.80 in fees, plus $400.00 in costs,
under the EAJA. Any objections to this Report and Recommendations must be served and filed
within fourteen (14) days, pursuant to Federal Rule of Civil Procedure 72(b)(2) and Local Rule
301.5(b).
IV.

NOTICE TO PARTIES
Failure to file written objections to the proposed findings, conclusions, and

recommendations of the Magistrate Judge contained in the foregoing report within fourteen (14)
days after being served with a copy of this report may result in the waiver of any right to a de
novo review of the determinations contained in the report, and such failure shall bar you from

medical record. Ten hours is a fair approximation of reasonable time to have spent on the work other than
unsuccessful legal arguments presented in Mr. Hill’s case.
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challenging on appeal the findings and conclusions accepted and adopted by the District Judge,
except upon grounds of plain error.

Dated: October 5, 2015

/s/
_____________
Stephanie A. Gallagher
United States Magistrate Judge

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