Bailey v. Astrue
ORDER granting in part and denying in part 22 Motion for Attorney Fees - For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, Plaintiff's motion for attorney fees and costs is granted in part and denied in part. Plaintiff& #039;s motion for attorney's fees is granted to the extent that she may be awarded fees and denied in part as to the hourly fee that plaintiff's counsel is entitled to assess. Plaintiff is directed to file an affidavit recalculating the at torney's fees using a separate hourly rate for the work performed in each year, as set forth on the Court's Attached Written Memorandum and Order, no later than June 14, 2013. The motion for costs in the amount of $766.26, consisting of $350 for filing fees, $130 for service costs, $281.26 for electronic research fees, and $5 for postage, is also granted. SO ORDERED by Judge Dora Lizette Irizarry on 5/31/2013. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MICHAEL J. ASTRUE,
Commissioner of Social Security,
DORA L. IRIZARRY, U.S. District Judge:
MEMORANDUM AND ORDER
Jeffrey Delott, counsel to plaintiff Leslie Bailey (“plaintiff”) in the above-captioned
action, moves the Court to authorize attorney’s fees and costs in the amount of $10,214.37 in
fees and $766.26 in costs pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. §
2412(d). (Mot. for Attorney’s Fees, Doc. Entry No. 22.) The Commissioner opposes the
motion. (Mot. in Opp. to Pl.’s Mot. for EAJA Fees (“Comm’r Opp.”), Doc. Entry No. 24.) For
the reasons set forth below, the motion is granted in part and Mr. Delott is directed to recalculate
the attorney’s fees consistent with this opinion.
Plaintiff filed a disability application on April 26, 2006, alleging she was disabled due to
fibromyalgia beginning July 20, 2004. The application was denied on August 18, 2006. (R. 7374, 100-03.) Plaintiff subsequently made a timely request for a hearing by an administrative law
judge and a hearing was held before Administrative Law Judge David Nisnewitz (“the ALJ”).
By decision dated July 20, 2007, the ALJ denied the application, finding that
plaintiff’s residual functional capacity (“RFC”) did not preclude her from performing the
Familiarity with the facts and background of this matter as set forth in Bailey v. Astrue, 815 F. Supp. 2d 590
(E.D.N.Y. 2011) is assumed, and only those facts necessary to decide the motion shall be set forth herein.
physical and mental demands of her past relevant work as a fire alarm dispatcher and, therefore,
she was not disabled for the closed period in question. (R. 21, 75-83.) On February 27, 2009,
the Appeals Council granted plaintiff’s request for review and remanded the case for additional
proceedings. (R. 87-92.) On September 24, 2009, the ALJ issued a decision again finding
plaintiff was not disabled. (R. 12-22.) On January 29, 2010, the Appeals Council denied
plaintiff’s request for review of the ALJ’s decision, and the ALJ’s decision became the
Commissioner’s final decision. (R. 1-3.)
On March 2, 2010, with the assistance of Mr. Delott, plaintiff appealed the final decision.
(Complaint, Doc. Entry No. 1.) On May 28, 2010, the Commissioner filed the administrative
record and his Answer. (See Doc. Entries No. 4, 5.) On June 22, 2010, Mr. Delott emailed
Commissioner’s counsel documents he claimed were excluded from the Administrative Record,
including a November 11, 2005 report from Dr. Bruce Stein (“Dr. Stein”), a rheumatologist.
Bailey v. Astrue, 815 F. Supp. 2d 590, 592 (E.D.N.Y. 2011).
On August 13, 2010,
Commissioner reported that the Appeals Council wanted to remand for further proceedings,
because the Appeals Council had not addressed Dr. Stein’s November 11, 2005 assessment prior
to denying plaintiff’s request for review. Id. Plaintiff declined the remand offer asserting that
the Appeals Council “undeniably” received the November 11, 2005 records, and the rationale for
remand was baseless. Id.; (see also Decl. of Karen T. Callahan ¶¶ 5-7, Doc. Entry No, 14.)
The Commissioner moved for remand for further administrative proceedings pursuant to
42 U.S.C. § 405(g) to consider the additional medical records that he claimed constituted new
and material evidence. (Comm’r Notice of Mot. at 1, Doc. Entry No. 11; Comm’r Mem. in
Supp. of Mot. for Remand at 15-16, Doc. Entry No. 10.)
Plaintiff then cross-moved for
judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), seeking reversal of
the Commissioner’s decision and remand solely for the purpose of calculating an award of
benefits. (Pl. Notice of Mot., Doc. Entry No. 15.)
On September 27, 2011, this Court found that the ALJ’s decision to deny plaintiff’s claim
for Social Security Disability benefits was based on a flawed application of the treating physician
rule as to Dr. Stein’s findings, and remanded the case for the ALJ to duly consider the treating
physician’s findings against all other medical evidence.
Bailey, 815 F. Supp. 2d at 598.
Accordingly, plaintiff’s motion for judgment on the pleadings was denied. Id. at 598-99. The
Commissioner’s motion for remand for further administrative proceedings was granted. Id. at
600. Since the matter was already being remanded for proper consideration of the treating
physician’s findings against the record as a whole, Dr. Stein’s November 11, 2005 records were
to be evaluated upon remand. Id. Lastly, the Court ordered that, on remand, the matter be
assigned to a different ALJ, due to the inappropriate contentiousness between the ALJ and
plaintiff’s counsel. Id. at 601.
On November 1, 2011, plaintiff made a motion for attorney fees in the amount of
$10,214.37, calculated at the hourly rate of $188.11 for 54.3 hours, and costs in the amount of
$766.26, consisting of $350 for filing fees, $130 for service costs, $281.26 for electronic
research fees, and $5 for postage, on the basis that the Commissioner’s position was not
substantially justified. (Mot. for Attorney’s Fees, Affirmation ¶¶ 11-12.)
The Commissioner partially opposed plaintiff’s motion, claiming that plaintiff’s request
for attorney’s fees and costs was unreasonable and excessive, because petitioner’s rejection of
the Commissioner’s offer of remand was unreasonable. Furthermore, the hourly rate should be
reduced as it was not calculated using historic hourly rates and plaintiff’s request for $130.00 in
“service costs” should be denied, as the request was not supported with sufficient explanation or
documentation. (Comm’r Opp. at 9, 11, 24.)
In response, plaintiff claimed that the Commissioner’s opposition was made in bad faith,
because it repeated the same legal arguments already rejected by courts in this district, and
therefore, plaintiff had a right to recover attorney’s fees at the prevailing market rate. Plaintiff
made a modified request for attorney’s fees for $31,400, calculated at the hourly market rate of
$500 for 62.8 hours of work, and $773.43 in costs (the difference from the original request for
costs being an additional $7.17 in research fees.). (Reply Mem. of Law in Further Support of
Motion for Attorney’s Fees and Costs, Doc. Entry No. 26.)
The Equal Access to Justice Acts provides in pertinent part:
[A] court shall award to a prevailing party other than the United States fees and
other expenses . . . incurred by that party in any civil action . . . 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)(1)(A). Pursuant to the EAJA, to be eligible for an award of attorney’s fees
a claimant must show that: (1) she is a “prevailing party;” (2) the Government’s position was not
“substantially justified;” (3) no “special circumstances make an award unjust;” and (4) the fee
application was submitted to the court within 30 days of final judgment in the action. Kerin v.
U.S. Postal Service, 218 F. 3d 185, 189 (2d Cir. 2000) (citing 28 U.S.C. § 2412(d);
Commissioner, INS v. Jean, 496 U.S. 154, 158 (1990)). The reasonableness of attorney’s fees
sought is a factual inquiry left to the discretion of the district court. Harris v. Astrue, 701 F.
Supp. 2d 410, 412-13 (E.D.N.Y. 2010) (citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
Here, the Commissioner does not dispute that plaintiff meets the first, second and fourth
requirements, but argues that “special circumstances” render the amount sought unreasonable.
(See Comm’r Opp. at 3.)
Whether the plaintiff should receive attorney’s fees after refusing an offer of remand
depends on whether refusal was reasonable. Harris, 701 F. Supp. 2d at 413 (citing McLaurin v.
Apfel, 95 F. Supp. 2d 111, 115-17 (E.D.N.Y 2000)). “If the record demonstrates that a plaintiff
could have reasonably expected to obtain a reversal, opposition by plaintiff to an offer to remand
would not be excessive even if the court ultimately disagreed with plaintiff’s arguments and
remanded the case.” McLaurin, 95 F. Supp. 2d at 115-17; see also Ferguson v. Apfel, 2000 WL
709018, at *4 (E.D.N.Y. Apr. 17, 2000) (awarding plaintiff’s counsel EAJA fees is appropriate
where the plaintiff opposed defendant’s motion to remand, if plaintiff’s arguments for reversal
“were not specious or meritless”); cf. Beiro v. Astrue, 2009 WL 9057735 at *4 (E.D.N.Y. Nov.
23, 2009) (“[C]ourts have found that attorneys’ fees for motion practice that results in no
appreciable gain for the plaintiff need not be reimbursed.”).
Plaintiff’s Rejection of the Commissioner’s Offer of Remand Was Reasonable
Whether plaintiff was reasonable in rejecting the Commissioner’s offer is determined
based on plaintiff’s likelihood of success on the motion, by reviewing the underlying merits of
the case. McLaurin, 95 F. Supp. 2d at 115. Commissioner argues, as he did in Harris and
Pereira, that special circumstances warrant a reduction in the fees sought because the court
granted the Commissioner’s motion for remand. See Harris, 701 F. Supp. 2d at 413; Pereira v.
Astrue, 739 F. Supp. 2d 267, 271 (E.D.N.Y. 2000). Therefore, plaintiff attained a result no more
favorable than what plaintiff would have received if plaintiff had accepted the offer, and plaintiff
unnecessarily prolonged the litigation by rejecting his offer of remand.
As the courts did in Harris and Pereira, the Court rejects this argument. Mr. Delott did
achieve a different remedy and appreciable gains for plaintiff by rejecting the offer of remand.
The Court found that the ALJ erred in applying the treating physician rule and “[t]he ALJ’s
failure to provide ‘good reason’ for not crediting the opinion of plaintiff’s treating source alone
[was] ground for remand.” Bailey, 815 F. Supp. 2d at 598 (emphasis added). The Court made it
clear that the Commissioner’s motion for remand was granted as a matter of course, because the
disability decision was being remanded for proper application of the treating physician rule
anyway. Id. at 600. In fact, the Court found that inclusion of the November 11, 2005 records
made the “ALJ’s failure to apply the treating physician rule even more egregious.” Id. The
Court also remanded the case to a different ALJ, because of contentiousness on the part of the
presiding ALJ. Id. at 601.
In addition, Plaintiff’s decision to reject the Commissioner’s offer of remand and instead
move for judgment on the pleadings was reasonable. Plaintiff’s treating physician stated she was
incapable of full time sedentary work and the treating physicians were in agreement that plaintiff
Moreover, the timing of the service of pleadings compared to the offer of remand is
relevant here. On or about June 22, 2010, the Commissioner was notified by plaintiff’s counsel
that certain medical evidence that had been submitted to the Appeals Council was not contained
in the administrative record. The Commissioner then waited until August 13, 2010, seven days
before its motion was due, to make an offer of remand. This was several months after he had
filed his answer and administrative record. This is not a case where plaintiff’s counsel was
offered remand before the answer was filed, such as in Beiro, which the Commissioner cites to
support his argument, despite significant factual differences with this case. (Comm’r Opp. at 6.)
Moreover, Mr. Delott did not “prematurely prepare plaintiff’s cross-motion.” (Comm’r
Opp. at 4.) The Commissioner filed his Answer and served the administrative record on May 28,
2010. (Mot. for Attorney’s Fees at 1.) On July 26, 2010, the Commissioner belatedly filed a
request for an extension of time to file Commissioner’s motion on the pleadings, originally due
July 30, 2010. (Comm’r Opp. at 4.) The Court granted the Commissioner’s request. The
Commissioner contends that by the date of the extension request, Mr. Delott had unreasonably
expended 36.9 hours reviewing the administrative record and preparing plaintiff’s cross-motion
for judgment on the pleadings. (Id.) This is not unreasonable given the fact that, before the
extension request was made, plaintiff’s cross-motion was due in 30 days. As the court found in
Pereira, it was not “unreasonable of counsel to begin preparing motion papers, which are
expected as a matter of course in most Social Security cases, before receiving the
Commissioner’s motion papers.” Pereira, 739 F. Supp. 2d at 271.
For the reasons stated above, plaintiff was not unreasonable for rejecting the
Commissioner’s offer of remand, nor was the amount of hours Mr. Delott spent on the crossmotion improper. As there is no “special circumstance” precluding award of fees under 28
U.S.C. § 2412(d)(1)(A) of the EAJA, plaintiff is eligible for an award of fees and other expenses.
Under sections 2412(b) and (c)(2), at the court’s discretion, a plaintiff can recover
attorney’s fees at the prevailing market rate, rather than the statutory rate, if he establishes that
the Commissioner acted in bad faith in either opposing the claimant’s benefits claim on the
merits or in opposing the claimant’s application for EAJA fees. Wells v. Bowen, 855 F. 2d 37,
46 (2d Cir. 1988). The Second Circuit distinguished between Section 2412(d)’s “substantially
justified” standard and section 2412(b)’s “bad faith” test, noting: “Section 2412(b) requires far
more egregious conduct on the government’s part than is required under section 2412(d).” Id.
Bad faith exists where “the losing party’s claims were ‘entirely without color and made for
reasons of harassment or delay or for other improper purposes.’” Id. (quoting Sierra Club v. U.S.
Army Corps of Engineers, 776 F. 2d 383, 390 (2d Cir. 1985), cert. denied, 475 U.S. 1084
The Court is perturbed by the Commissioner’s failure to acknowledge or differentiate
Harris and Pereira, two recent opinions from this district that rejected the same arguments the
Commissioner makes in the instant opposition motion. However, the Commissioner’s arguments
in opposition to plaintiff’s motion for attorney’s fees are not “entirely without color.” Wells, 855
F. 2d at 46. Plaintiff has provided insufficient evidence that the Commissioner’s opposition of
the request for attorney’s fees was meant to harass or retaliate against plaintiff. The test is
conjunctive and “neither meritlessness alone nor improper purpose alone will suffice.” See
Sierra Club, 776 F. 2d at 390. Accordingly, plaintiff’s request for an award of a market rate fee
of $500 per hour is denied. 2
Hourly Rate for Attorney’s Fees
“Attorney’s fees under 28 U.S.C. § 2412 are to be awarded at the rate of $125 per hour,
adjusted by the consumer price index [“CPI”] for the relevant community.” Pereira, 739 F.
Supp. 2d at 272. The court must apply a different cost of living adjustment for each year in
which the hours were billed, rather than applying a single adjustment to the total hours billed.
Kerin, 218 F. 3d at 194.
Plaintiff requests attorney’s fee at the hourly rate of $188.11, for all three years Mr.
Delott did work on her case. The Commissioner objects to that hourly rate, arguing that Mr.
Delott did not use historic rates adjusted to the CPI in arriving at his proposed hourly rate.
Instead, the Commissioner argues that, using the Bureau of Labor Statistics for New York,
Notably, the Second Circuit repeatedly has rejected the granting of attorney’s fees at the rate of $500 per hour for
cases in this district as excessive. Konits v. Karahalis, 409 F. App’x 418, 422-23 (2d Cir. 2011).
Northern New Jersey and Long Island, the hourly rates should be $180.83 for work performed in
2010 and $184.93 for work performed in 2011. (Comm’r Opp. at 10.) In fact, Mr. Delott does
use a historic hourly rate adjusted to the CPI and the parties disagree only on whether the
appropriate hourly rate should be determined from a yearly CPI average or a monthly figure.
The Commissioner proposes averaging the CPI for each month to reach a yearly average and Mr.
Delott proposes using a CPI for the month of September 2011. Courts have found both methods
are appropriate. See also Sarro v. Astrue, 725 F. Supp. 2d 364, 368 (E.D.N.Y. 2010) (adjusting
the statutory $125 per hour rate based upon yearly averages of the CPI for the New York-New
Jersey-Long Island area); Contra Ferguson v. Apfel, 2000 WL 709018 at *1 n.1 (E.D.N.Y. Apr.
17, 2000) (accepting plaintiff’s calculation, which Commissioner did not refute, adjusting the
statutory $125 per hour rate based upon a single CPI monthly figure).
Mr. Delott reached his proposed hourly rate calculation using a formula provided by the
Commissioner’s counsel in Williams v. Astrue, 08-cv-8029 (S.D.N.Y. 2008), and attached an
email from the Commissioner’s counsel in that case regarding the calculation. (See Mot. for
Attorney’s Fees, Ex. B.) While the formula Mr. Delott used is acceptable, Mr. Delott does not
challenge the argument that different rates should apply for each of the years he performed work
on this case, 2009, 2010, and 2011. Accordingly, Mr. Delott is directed to calculate the amount
he is due, using separate hourly rates for the work done in each of the separate years.
The $130 In Service Fees is Supported by Sufficient Evidence
The Commissioner objects to the award of $130 in “service costs,” because plaintiff
allegedly did not submit an explanation justifying the fee. (Comm’r Opp. at 11.) Mr. Delott
included a photocopy of a check for $130 made out to Allstate Process Service and, therefore,
has supported that cost adequately. In fact, this is the same evidence that the Pereira court found
satisfactory to explain the identical service fee, which the Commissioner objected to. See
Pereira, 739 F. Supp. 2d at 272. Accordingly, plaintiff is entitled to service costs in the amount
Plaintiff’s motion for attorney’s fees is granted to the extent that she may be awarded fees
and denied in part as to the hourly fee that plaintiff’s counsel is entitled to assess. Plaintiff is
directed to file an affidavit recalculating the attorney’s fees using a separate hourly rate for the
work performed in each year, as set forth above, no later than June 14, 2013. The motion for
costs in the amount of $766.26, consisting of $350 for filing fees, $130 for service costs, $281.26
for electronic research fees, and $5 for postage, is also granted.
DATED: Brooklyn, New York
May 31, 2013
DORA L. IRIZARRY
United States District Judge
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