Grabowski v. Social Security, Commissioner of

Filing 38

OPINION and ORDER Granting In Part and Denying In Part Plaintiff's 32 Application for Attorney Fees Under the Equal Access to Justice Act. Signed by District Judge Linda V. Parker. (Loury, R)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NICOLE R. GRABOWSKI,
Plaintiff,
Case No. 13-10699
Honorable Linda V. Parker

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_______________________________/

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S APPLICATION FOR ATTORNEY FEES UNDER THE
EQUAL ACCESS TO JUSTICE ACT
Plaintiff initiated this lawsuit on February 19, 2013, seeking judicial review
of Defendant’s determination that she is not entitled to social security disability
benefits. One of the challenges Plaintiff raised to Defendant’s determination was
the Administrative Law Judge’s conclusion that her mental impairments (bipolar
disorder, depression, dependent personality disorder, and polysubstance
dependence) do not meet or equal a listed impairment. The Administrative Law
Judge (“ALJ”) reached this conclusion because he found that Plaintiff suffered
only moderate difficulties or restrictions in activities of daily living, social
functioning, and concentration, persistence, or pace, and that while she had
experienced one to two episodes of decompensation, none had been for an
extended duration. Finding that the ALJ took selective portions of Plaintiff’s

hearing testimony and statements suggesting that she is able to engage in activities
of daily living, social functioning, and concentration, persistence, or pace, while
overwhelming evidence indicated that she in fact is markedly limited in at least
two of these areas, the Court reversed Defendant’s decision and entered judgment
in Plaintiff’s favor.
Presently before the Court is Plaintiff’s motion for attorney’s fees under the
Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, filed February 9, 2015.
(ECF No. 32.) Defendant filed a response to the motion on March 5, 2015, arguing
that its position in the underlying action and in these civil proceedings was
substantially justified and thus a fee award should not be made. (ECF No. 35.)
Alternatively, Defendant argues that Plaintiff’s requested fees are excessive.
Plaintiff did not file a reply brief. For the reasons that follow, the Court awards
Plaintiff her attorney’s fees but in an amount less than she requests.
Procedural Background
Plaintiff applied for Disability Insurance Benefits and Supplemental Security
Income under the Social Security Act on September 23, 2009, alleging that she
became disabled on January 29, 2007. The Social Security Administration denied
Plaintiff’s application for benefits initially. Upon Plaintiff’s request, ALJ Richard
L. Sasena (“ALJ”) conducted a de novo hearing on March 3, 2011. Plaintiff, her
caseworker, and a vocational expert testified at the hearing. The ALJ issued a
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decision on October 3, 2011, finding Plaintiff not disabled within the meaning of
the Social Security Act and therefore not entitled to benefits. The ALJ’s decision
became Defendant’s final decision when the Social Security Appeals Council
denied review. Plaintiff then initiated this action.
The parties thereafter filed cross motions for summary judgment, which this
Court referred to Magistrate Judge Charles E. Binder. As indicated earlier, one of
the arguments Plaintiff raised in her motion was that substantial evidence did not
support the ALJ’s conclusion at the third step of his five-step analysis that
Plaintiff’s impairments did not meet or equal a listed impairment. In a report and
recommendation issued July 14, 2014, Magistrate Judge Binder found no error in
the ALJ’s step-three assessment. The magistrate judge also concluded that
substantial evidence supported the ALJ’s decision that Plaintiff is not disabled.
Plaintiff filed objections, which this Court granted in an opinion and order
issued November 10, 2014. The Court concluded that the ALJ and Magistrate
Judge Binder could have found that Plaintiff suffered only moderate limitations in
activities of daily living and social functioning by cherry-picking portions of her
testimony and the record. The Court found that the evidence in fact indicated that
Plaintiff suffers marked limitations in both areas. The Court therefore found
Plaintiff disabled for purposes of the Social Security Act, reversed Defendant’s

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decision, and entered a judgment in favor of Plaintiff. Defendant did not appeal
the Court’s decision.
The EAJA
The EAJA provides in pertinent part:
[A] court shall award to a prevailing party other than the United States
fees and other expenses, in addition to any costs awarded pursuant to
subsection (a), incurred by that party in any civil action (other than
cases sounding in tort), including proceedings for judicial review of
agency action, brought by or against the United States in any court
having jurisdiction of that action, unless the court finds that the
position of the United States was substantially justified or that special
circumstances make an award unjust.
28 U.S.C. § 2412(d). There is no dispute that Plaintiff is a prevailing party. The
only challenges that Defendant raises relative to Plaintiff’s request for attorney’s
fees are whether the government’s position was “substantially justified” so as to
preclude an award and, if not, the reasonable hours expended by Plaintiff’s counsel
for use in calculating the award.
“ ‘Substantially justified’ means ‘justified in substance or in the main– that
is, justified to a degree that could satisfy a reasonable person.’ ” Marshall v.
Comm’r of Soc. Sec., 444 F.3d 837, 842 (6th Cir. 2006) (quoting Pierce v.
Underwood, 487 U.S. 552, 565 (1988)). To be substantially justified, the
government’s position must be reasonable both in law and fact. Pierce, 487 U.S.
at 559; see also Jankovich v. Bowen, 868 F.2d 867, 870 (6th Cir. 1989). “[A]
position can be justified even though it is not correct . . ..” Pierce, 487 U.S. at 556
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n.2. As well, the government’s position may have been substantially justified even
if it lost the case. Howard v. Barnhart, 378 F.3d 551, 554 (6th Cir. 2004). The
government bears the burden of proving that its position was substantially
justified. See Scarborough v. Principi, 541 U.S. 401, 403 (2004).
Application
This Court agrees with Plaintiff that the ALJ’s step-three determination was
based on a skewed view of the evidence and that Defendant’s defense of the ALJ’s
analysis was not substantially justified. In other words, Defendant’s position was
not reasonable in fact. Defendant argues that Magistrate Judge Binder’s agreement
with its position “reflects that reasonable people could differ as to the propriety of
the contested action.” (ECF No. 35 at Pg ID 867.) This Court found, however,
that the magistrate judge, like the ALJ, took selective portions of Plaintiff’s
hearing testimony and statements and ignored overwhelming evidence reflecting
that she suffers marked restrictions in activities of daily living and social
functioning. Defendant did not simply commit “a run-of-the-mill error in
articulation”, Bassett v. Astrue, 641 F.3d 857, 860 (7th Cir. 2011); rather
Defendant mischaracterized and ignored evidence. The Court therefore holds that
Plaintiff is entitled to an award of attorney’s fees. The Court agrees with
Defendant, however, that Plaintiff is not entitled to the full amount of the award
she seeks.
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Generally, the starting point to determine the amount of a reasonable fee
award under the EAJA is the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate. See Hensley v. Eckerhart, 461
U.S. 424, 433 (1983); Comm’r, INS v. Jean, 496 U.S. 154, 161 (1990) (explaining
that once a litigant has established eligibility for fees under the EAJA, “the district
court’s task of determining what fee is reasonable is essentially the same as that
described in Hensley.”).
As an initial matter, Defendant does not take issue with the hourly rate
($170) requested by Plaintiff.1 Defendant argues, however, that the 51.6 hours of
work for which Plaintiff seeks reimbursement were not reasonably expended in
pursuit of this litigation. Specifically, Defendant takes issue with the following:
13.7 hours for work it claims was unrelated to this litigation or concerned
The EAJA indicates that “[f]ees and other expenses” include “reasonable attorney
fees,” which should be based upon:

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prevailing market rates for the kind and quality of the services
furnished, except that . . . attorney fees shall not be awarded in excess
of $125 per hour unless the court determines that an increase in the
cost of living or a special factor, such as the limited availability of
qualified attorneys or agents for the proceedings involved, justifies a
higher fee.
28 U.S.C. § 2412(d)(2)(A). Courts in this District have held that an increase in the
cost of living or the limited availability of qualified attorneys justifies an hourly
rate of $170 and higher. See, e.g., Prieur v. Comm’r of Soc. Sec’y, No. 13-cv12409, 2015 WL 143922, at *2 (E.D. Mich. Jan. 12, 2015) (Leitman, J.); Pizzo v.
Comm’r of Soc. Sec’y, No. 13-cv-11344, 2014 WL 7157129, at *1 (E.D. Mich.
Dec. 15, 2014) (Steeh, J.).
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Plaintiff’s separate Social Security Insurance (“SSI”) application; 2.5 hours spent
corresponding with Plaintiff’s legal guardian; 1.5 hours expended inquiring about
whether the Appeals Council had effectuated the Court’s order and its effect on
Plaintiff’s concurrent SSI application; . 2 hours spent contacting the Court when
the wrong judgment was filed on the docket; and 2.7 hours billed for receipt and
review of basic court orders (e.g., notice of electronic filing of client’s complaint,
notice of order granting ex parte motion for extension, notice that administrative
transcript was downloaded by defendant; notice of magistrate judge reassignment).
Counsel for the prevailing party must exercise “billing judgment” to
“exclude from a fee request hours that are excessive, redundant, or otherwise
unnecessary, just as a lawyer in private practice ethically is obligated to exclude
such hours from his fee submission.” Hensley, 461 U.S. at 434. “Hours that are
not properly billed to one’s client also are not properly billed to one’s adversary
pursuant to statutory authority.” Id. (internal quotation marks and citation omitted,
emphasis in Hensley). The party seeking fees has the burden of proving that the
fees requested are reasonable. Id. at 437.
Plaintiff is not entitled to reimbursement for the hours her attorney spent on
matters unrelated to this case.2 Contrary to Defendant’s assertion, however, the

Plaintiff in fact filed a motion on the date of the filing of this decision, seeking
leave to amend her motion for attorney’s fees in order to deduct the hours her
counsel expended filing a new social security application at the administrative
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2

Court believes that the 2.2 hours Plaintiff’s counsel billed for time spent
communicating with Plaintiff and/or Plaintiff’s guardian about this case are
compensable as they are hours that an attorney would properly bill to his or her
client. This includes the following time entries:
12/16/13

.4

3/24/14

.4

3/25/14

.1

7/30/14

.4

12/8/14

.7

12/30/14

.2

Correspondence sent to Nicole care of her legal guardian, John
Yun, Esq., forwarding the U.S. Attorney’s Motion for Summary
Judgment and explaining that the Motion was not a “decision,”
and describing the timeline regarding what will be occurring
next, etc.
Correspondence to John Yun- sent a copy of our Motion for
Summary Judgment
E-mail response sent to Jennifer Swartz indicating that the case
has been reassigned to a new Magistrate Judge, etc.
Correspondence sent to Nicole care of John Yun, Esquire, legal
guardian for the client, enclosing the Magistrate Judge’s Report
and Recommendation and advising that this is not a final
decision and that we would be filing Objections to this Report
and Recommendation, etc.
Correspondence sent to Nicole care of John Yun, Esq.,
forwarding the favorable decision for the U.S. District Court.
Explained what occurred in the decision and that it was a
reversal of the administrative decision previously issued.
Explained that we need to wait the appeal period before this
becomes a final decision. Also forwarded an EAJA assignment
form, should EAJA fees become available, etc.
Client called regarding the Federal Court decision. Explained to
her that we are waiting for the appeal period to expire. If there is
no appeal, we will withdraw our Request for Hearing on her new
application. Presently Nicole lives at Northville Farm with a
friend, has no income, etc.

level. (ECF No. 36.) Plaintiff’s counsel represents that she inadvertently forgot to
delete those entries previously and that their removal reduces the hours for which
she is seeking attorney’s fees to 41.9 hours. As the Court already made the
decision to remove those hours from its calculation of the attorney’s fees to award
Plaintiff, it is denying the motion as moot.
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These were not simple courtesies, like the “thank you” e-mail mentioned in the
case cited by Defendant: Loiselle v. Commissioner of Social Security, No. 0812513, 2010 WL 4643073, at *3 (E.D. Mich. Oct. 18, 2010). Instead, Plaintiff’s
counsel was keeping her client apprised of the litigation. See Quade ex rel. Quade
v. Barnhart, 570 F.Supp.2d 1164, 1167 (D. Ariz. 2008) (holding that attorney fees
requested under the EAJA for time spent during telephone calls with client were
reasonable, where attorney has ethical duty to communicate with client, and legal
issues could have arisen in those calls).
The Court also believes that the 2.7 hours expended by Plaintiff’s counsel to
review simple and/or routine notices and orders that were issued in this case are
compensable and reasonable. Although other courts have reduced or disallowed
billing entries for the receipt and review of simple orders, this generally was due to
the attorney’s billing in one-quarter increments. See, e.g., Colegrove v. Barnhart,
435 F. Supp. 2d 218, 221 (W.D.N.Y. 2006) (holding that a reduction was
necessary when a number of entries were billed in quarter-hour time increments for
tasks that seemingly would not take a full fifteen minutes (i.e., enclosure letters,
receipt and review of simple orders from the court and letters for extensions of
time); Hawkins v. Astrue, No. Civ. A. 09-7460, 2010 WL 5375948 at *2-3 (E.D.
La. Nov. 24, 2010) (finding that billing in .25 increments for a review of what are
at most one-page documents is unreasonable and reducing charges to one-tenth of
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an hour); Hagen v. MRS Assoc., Inc., No. Civ. A. 99-3749, 2001 WL 531119, at
*4-5 (E.D. La. May 15, 2001) (reducing the fee award by 10% to account for the
inadequacy of quarter-hour billing increments); Dzwonkowski v. Dzwonkowski, No.
05-0544-KD-C, 2008 WL 2163916, at *26 (S.D. Ala. May 16, 2008) (reducing
each time entry recorded as .25 to .1); Sandoval v. Apfel, 86 F. Supp. 2d 601, 615
(N.D. Tex. 2000) (billing one quarter-hour to review simple notices, motions and
court orders that were less than one page long is excessive); Bowman v. Sec’y of
H.H.S., 744 F. Supp. 898, 899-901 (E.D. Ark. 1989) (reducing or disallowing
billing entries of .25/hour for the receipt and review of short and simple motions
and orders). Here, Plaintiff’s counsel billed in increments of one-tenth of an hour
and her receipt and review of simple and/or routine notices and orders did not take
longer than what appears to have been reasonable for the particular document at
issue.
For these reasons, the Court concludes that Plaintiff is entitled to
compensation for 4.9 hours of her attorney’s time above the 30.5 hours that
Defendant identifies for the Court to include in any fee award. 3 (See ECF No. 35

Of these 30.5 hours, Defendant does contest the combined 9.2 hours Plaintiff’s
counsel spent on August 10 and 12, 2014, preparing the objection to the Magistrate
Judge’s Report and Recommendation. (ECF No. 35 at Pg ID 888.) Defendant
argues that “9.2 hours appears excessive given [Plaintiff’s counsel’s] familiarity
with the case and the underlying law.” (Id.) Defendant also argues that Plaintiff
did not introduce any new argument or significantly alter the arguments she
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at Pg 887-888). Additionally, in its list of compensable entries (see id.), Defendant
omits a May 28, 2013 billing entry of .9 hours without stating a reason for
excluding the time. This works is described as being expended on the instant
action, specifically: “Correspondence sent to three locations of defendant-- served
the Summons and Complaint via certified mail”. In total, therefore, the Court finds
that Plaintiff is entitled to an award of attorney’s fees based on 36.3 hours of work
expended by her counsel.
Plaintiff also seeks $183.00 in costs, which is comprised of the following:
$47.00 PACER charge to download the administrative transcript; $84.00 Westlaw
research on December 9, 2013; and $52.00 Westlaw research on August 19, 2014.
(ECF No. 32-3 at Pg ID 852.) In response, Defendant contends that Plaintiff has
not shown that Westlaw research fees are recoverable under 28 U.S.C. § 1920.
(ECF No. 35 at Pg ID 889.) The EAJA allows for an award of costs beyond those
identified in § 1920, however
Specifically, in addition to costs compensable under § 1920, see 28 U.S.C.
§ 2412(a)(1), the EAJA provides for an award that includes “reasonable fees and
expenses of attorneys[.]” Id. § 2412(b) (emphasis added). The EAJA provides this
definition, in relevant part, with respect to “fees” and “expenses”:

previously raised. The Court declines to reduce the time reported, however,
particularly given that those objections enabled Plaintiff to prevail in this litigation.
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“fees and other expenses” includes the reasonable expenses of expert
witnesses, the reasonable cost of any study, analysis, engineering
report, test, or project which is found by the court to be necessary for
the preparation of the party’s case, and reasonable attorney fees . . .
28 U.S.C. § 2412(d)(2)(A). Several courts have held “that ‘fees’ and ‘expenses’
are defined in the Act by example, rather than by limitation.” Jean v. Nelson, 863
F.2d 759, 777-78 (11th Cir. 1988) (citing Int’l Woodworkers of Am. v. Donovan,
792 F.2d 762, 767 (9th Cir. 1985); Aston v. Sec’y of HHS, 808 F.2d 9, 12 (2d Cir.
1986)); see also Hyperion, Inc. v. United States, 118 Fed. Cl. 540, 548 (2014);
Kelly v. Bowen, 862 F.2d 1333, 1335 (8th Cir. 1988); Patel v. Att’y Gen. of United
States, 426 F. App’x 116, 118 n.6 (3d Cir. 2011) (recognizing that the EAJA does
not provide an exhaustive definition of expenses). Those courts have held that
“[t]he limitation on the amount and nature of such expenses is that they must be
‘necessary to the preparation of the [prevailing] party’s case.’ ” Jean, 863 F.2d at
778 (quoting 28 U.S.C. § 2412(d)(2)(A)). As such, they have found telephone,
reasonable travel, postage, and computerized research expenses compensable
under the EAJA. Id.; see also Int’l Woodworkers of Am., 792 F.2d at 767 (holding
that expenses routinely billed to a client- telephone, air courier, attorney travel- are
recoverable under the EAJA); Aston, 808 F.2d at 12 (affirming award of telephone,
postage, travel and photocopying expenses).

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The Court finds that the expenses sought by Plaintiff were necessary to the
preparation of her case. The Court therefore is awarding Plaintiff all of the costs
sought, or $183.00.
Conclusion
For the reasons set forth above, the Court concludes that Plaintiff is entitled
to an award of attorney’s fees under the EAJA. The Court awards Plaintiff fees
totaling $6,171.00, representing 36.3 hours of attorney work billed at $170.00 per
hour. Additionally, the Court awards Plaintiff costs of $183.00. The total award
of $6,354.00 should be payable to Eva I. Guerra, pursuant to the EAJA assignment
signed by Plaintiff (see ECF No. 32-6), absent a debt owed by Plaintiff to the
government. Astrue v. Ratliff, 560 U.S. 586 (2010). Accordingly, the Court is
GRANTING IN PART AND DENYING IN PART Plaintiff’s application for
attorneys’ fees under the Equal Access to Justice Act. (ECF No. 32.) As noted,
the Court also is DENYING AS MOOT Plaintiff’s Motion for Leave to File
Corrected Application for EAJA Fees. (ECF No. 36.)
SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: April 21, 2015

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I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, April 21, 2015, by electronic and/or U.S.
First Class mail.
s/ Richard Loury
Case Manager

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