Harvey v. Astrue

Filing 21

DECISION AND ORDER granting Pltf's 19 Motion for Attorney Fees and costs in the amount of $7,175.64. Signed by Senior Judge Thomas J. McAvoy on 5/26/11. (sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------DIRK P. HARVEY,
Plaintiff,
v.

09-CV-00020 (TJM/GJD)

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
-------------------------------THOMAS J. McAVOY
Senior United States District Judge
DECISION and ORDER
Plaintiff moves for an award of attorney’s fees under the Equal Access to Justice
Act (“EAJA”), 28 U.S.C. § 2412. The Commissioner does not oppose the motion. For the
following reasons the motion is granted.
I. FACTS
On January 8, 2009, Plaintiff filed a Complaint, appealing a final decision of the
Commissioner of Social Security that denied Plaintiff’s claim for benefits. Dkt. 1 at 1.
Magistrate Judge Bianchini issued a Report and Recommendation recommending that the
Plaintiff’s claim for benefits be remanded for further proceedings pursuant to 42 U.S.C.
§405(g). Dkt. 15 at 16. This Court adopted the Report and Recommendation on November
18, 2010. Dkt. 16 at 1. A final judgment was entered in favor of Plaintiff on November 18,
2010. Dkt. 17 at 1.

On January 11, 2011, Plaintiff filed a motion seeking attorney's fees and costs in the sum of
$7,175.64. Dkt. 19 at 1. The sum represents 40.9 hours Plaintiff's attorney worked on this
matter and the cost of service of the Summons and Complaint. Dkt. 19-1 at 10. The hourly
rates charged by Plaintiff’s attorney in 2008, 2009, 2010, and 2011, respectively, are as
follows: $174.24, for 3 hours; $174.53, for 32.6 hours; $179.04, for 2.8 hours; and $179.04,
for 2.5 hours. Dkt. 19 at 1.
II. DISCUSSION
The EAJA provides that:
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 . . . brought by or against the
United States . . . 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). A party seeking an award of fees and other expenses shall file a
motion with the court within thirty days of final judgment in the action. 28 U.S.C. §2412
(d)(1)(B).
a. Conduct Not Substantially Justified
The government bears the burden of showing that its position was substantially
justified. Healey v. Leavitt, 485 F.3d 63, 67 (2d Cir. 2007). To meet that burden it must
make a strong showing that its action was “‘justified to a degree that could satisfy a
reasonable person.’” Healey, 485 F.3d at 67 (quoting Pierce v. Underwood, 487 U.S. 552,
565, 108 S. Ct. 2541, 101 L. Ed.2d 490 (1988)). Courts have found the Commissioner’s
position is not substantially justified when a Social Security claim is “supported from the start
by probative medical evidence that was unreasonably ignored or mischaracterized by the . . .
ALJ.” Ericksson v. Commissioner of Social Security, 557 F.3d 79, 83 (2d Cir. 2009) (where a
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physician’s report of the plaintiff’s back condition was summarized by the ALJ as simply
being “noted, when the doctor in fact made an independent diagnosis”); see also 20 C.F.R.
§404-1527 (d) (“Regardless of its source, we will evaluate every medical opinion we
receive.”).
Here, for the reasons stated in the Court’s prior decision remanding Plaintiff’s claim
to the Commissioner of Social Security for expedited proceedings, the Court finds the
Commissioner was not substantially justified in challenging the action.1
b. Reasonable Attorney’s Fees
Allowable fees and other expenses under the EAJA are defined as:
. . . reasonable attorney fees (The amount of fees awarded under this subsection
shall be based upon prevailing market rates for the kind and quality of the services
furnished . . . and . . . attorney fees shall not be awarded in excess of $125 per
hour unless the court determines that an increase in the cost of living . . . justifies a
higher fee.).
28 U.S.C. §2412(d)(2)(A). “The most useful starting point for determining the amount of a
reasonable fee is the number of hours reasonably expended on the litigation multiplied by a
reasonable hourly rate.” Healey, 485 F.3d at 69 (quoting Hensley v. Eckerhart, 461 U.S.
424, 433, 103 S. Ct. 1933, 76 L. Ed.2d 40 (1983)). The standard fee for routine social
security cases under the EAJA in the Second Circuit averages around twenty to forty hours.
See Coughlin v. Asture, 2009 WL3165744, at *2 (N.D.N.Y. Sept. 28, 2009). Attorney’s fees
may be awarded in an amount “above the statutory cap if they are ‘qualified for the
proceedings’ in some specialized sense, rather than just in their general legal competence.”
Healey 485 F.3d at 68.

1

In light of the failure to file opposition papers, the Com m issioner does not argue otherwise.
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Here, Plaintiff’s attorney spent 40.9 hours for representation of Plaintiff between
December 2008 - January 2011, which largely consisted of a reasonable amount of time
conducting research, drafting memoranda, and reviewing court documents. Furthermore, the
hourly rate charged by Plaintiff’s attorney, adjusted for cost of living increases by the
Consumer Price Index, is also reasonable. See Dkt. 19-1 at 9; see also Harris v. Sullivan,
968 F.2d 263,265 (2d Cir. 2008) (noting that “cost of living” has the “ordinary meaning and is
properly measured by the Consumer Price Index”); Kerin v. U.S. Postal Service, 218 F.3d
185, 194 (2d Cir. 2000) (“the hourly rate under §2412 (d)(1)(A) should only be increased by
the corresponding Consumer Price Index for each year in which the legal work was
performed”).

III. CONCLUSION
For the foregoing reasons, the Court grants Plaintiff’s motion and awards attorney’s
fees and costs in the amount of $7,175.64.

IT IS SO ORDERED.
Dated:May 26, 2011

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