Nuzzo v. Astrue

Filing 32

MEMORANDUM & ORDER: The Plaintiffs motion 25 for fees under the EAJA is granted in the reduced amount of $2,749.64, and costs in the amount of $350, for a total of $3,099.64. Ordered by Judge Frederic Block on 4/14/2014. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CYNTHIA A. NUZZO,
Plaintiff,

MEMORANDUM AND ORDER
12-CV-2373 (FB)

-againstCAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
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For the Defendant:
LORETTA E. LYNCH, ESQ.
United States Attorney
CANDACE SCOTT APPLETON, ESQ.
Assistant United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, NY 11201

Appearances:
For the Plaintiff:
CHARLES E. BINDER, ESQ.
Law Offices of Harry J. Binder and
Charles E. Binder, P.C.
60 East 42nd Street, Suite 520
New York, NY 10165

BLOCK, Senior District Judge:
Plaintiff Cynthia Nuzzo (“Nuzzo”), whose appeal challenging a denial of benefits was
remanded for further proceedings before the Social Security Administration, moves for an
award of attorney fees and costs under the Equal Access to Justice Act, 20 U.S.C. §
2412(d)(1)(A). (“EAJA”). She requests $5,360.26 in fees based on 28.2 hours of counsel’s time
expended primarily during 2012. The Commissioner of Social Security (“Commissioner”)
opposes the award and argues that the fees are unreasonable because the majority of work
was performed after Nuzzo rejected the Commissioner’s offer to stipulate to a voluntary
remand for further proceedings.
I
Nuzzo filed her case in this Court in May 2012. In September, the Commissioner

offered Nuzzo a remand for further proceedings before any substantive work was done on her
case. At that point, plaintiff’s counsel had completed only 1.3 hours of work in connection
with drafting and filing the federal court complaint. The Commissioner’s remand offer was
extensive, and required, inter alia, (1) a new hearing, (2) consolidation of her appeals claim
with another social security claim that Nuzzo had filed, (3) a commitment by the agency to
further develop and update evidence, (4) a determination of new RFC findings in light of
additional evidence, and (5) additional evaluation of objective medical evidence. Nuzzo
rejected the Commissioner’s offer because it did not include provisions to guarantee
reassignment to a different ALJ and the imposition of a 120-day limit. Thereafter, counsel
spent 26.9 additional hours litigating the matter with additional federal court motion practice,
but did not seek the reassignment or the 120-day limit. In June 2013, the Court granted the
Commissioner’s motion to remand for further proceedings and denied Nuzzo’s motion to
remand for calculation of benefits.
Nuzzo argues that, as a prevailing party, “[b]ecause the Commissioner’s position was
not substantially justified, [she] is entitled to an award of attorney fees.” Pl.’s Mem. in Support
of Motion for Atty. Fees, at 4. But Nuzzo fails to remember that the district court, even when
analyzing a request of a prevailing party, must also determine what is reasonable. See
Commissioner, INS v. Jean, 496 U.S. 154, 160-61 (1990) (“It remains for the district court to
determine what fee is reasonable,” and the “task of determining what fee is reasonable is
essentially the same as that described in Hensley.”) (citing Hensley v. Eckerhart, 461 U.S. 424,
(1983)) (internal citations and quotations omitted). Reasonableness determinations take into

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account various considerations, “including the important factor of the ‘results obtained.”
Hensley, 461 U.S. at 434. “This factor is particularly crucial where a plaintiff is deemed
‘prevailing’ even though [s]he succeeded on only some of h[er] claims for relief.” Id.
II
The Court agrees with the Commissioner that protracted litigation was unnecessary
and unreasonable. The Commissioner’s original stipulation offer was appropriate and
thoroughly supported by objective medical evidence and well-established law. Even though
Nuzzo is, for EAJA purposes, a prevailing party, the “important factor of the ‘results
obtained,’” weighs heavily because the final outcome was no better than the Commissioner’s
remand offer. Hensley, 461 U.S. at 434.
However, attorney fees should not be denied for all work completed after the
September 2012 remand offer. Rather, counsel’s billing log shows that through October 13,
2012, the work included a review of the entire transcript and medical research, as well as
outlining arguments.1 Even experienced litigators in this area would need time to review the
administrative record in depth in order to realize that remand for further proceedings was the
obvious and necessary disposition of Nuzzo’s case. It is only after this point that awarding
fees would be unreasonable. See Aston v. Sec’y of Health and Human Svcs., 808 F.2d 9, 11 (2d Cir.
1986) (explaining that a “district court has broad discretion” in determining what is reasonable
when awarding EAJA attorney fees).
Accordingly, the fees are reduced to an award of 14.5 hours, which includes 1.3 hours
Counsel’s records show 10/13/2013, but the typographical error in the year is
evident in light of the full record: plaintiff’s memorandum was filed in 2012.
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related to drafting and filing the complaint and 13.2 for additional review of the record
through October 13, 2012. Even in light of the Second Circuit’s opinion in Vincent v.
Commissioner of Social Security, 651 F.3d 299 (2d Cir. 2011), this reduction is reasonable. In
Vincent, the Second Circuit reversed the district court’s fee reduction because it was based on
the erroneous reasoning that counsel failed to further develop the administrative record. See
651 F.3d at 305. That responsibility rests solely with the ALJ. Id. Unlike Vincent, Nuzzo’s
counsel pursued litigation that had no chance of resulting in a remand for calculation of
benefits. And unlike cases where courts have awarded EAJA fees for work done opposing a
remand offer, in those cases the Commissioner’s offer came after work was completed or
substantially started, not before, as with Nuzzo. See, e.g., Harris v. Astrue, 701 F. Supp. 2d 410,
413 (“offer of remand came after the action was commenced, months after Defendant's answer
was filed, after Plaintiff's summary judgment papers had been prepared and sent to defense
counsel on an informal basis, and after counsel had expended more than 25 hours prosecuting
th[e] action”).
Finally, the adjusted hourly rate Nuzzo utilizes in her motion is incorrect. In the
Second Circuit, various methods for calculating an adjusted cost of living increase over the
EAJA statutory base rate of $125 are allowed by 28 U.S.C. § 2412(d)(2)(A). See also Harris v.
Sullivan, 968 F.2d 263 (2d Cir. 1992). Courts in this district generally use the Bureau of Labor
Statistics’ annualized CPI-U data for the New York-Northern New Jersey-Long Island area.
Applying the increase in the base EAJA rate from March 1996, with an index of 166.5, to the
2012 ending index of 252.588, results in a multiplier of 1.517, for a final adjusted hourly rate
of $189.63. This accords with the Commissioner’s calculations and results in an award of fees
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totaling $2,749.64 for 14.5 hours of work.
III
For the foregoing reasons, plaintiff’s motion for fees under the EAJA is granted in the
reduced amount of $2,749.64, and costs in the amount of $350, for a total of $3,099.64.2
SO ORDERED.
________/s/______________________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
April 14, 2013

The Commissioner does not dispute the award of costs.

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