Mills v. Astrue

Filing 21

MEMORANDUM-DECISION AND ORDER - That the Clerk is directed to substitute Carolyn W. Colvin, Acting Commissioner of Social Security, for defendant Michael J. Astrue, and amend the caption accordingly. That Mills 18 Motion for Attorney Fees and Cos ts is GRANTED, but the award is reduced to $7,569.59, which is comprised of $56 in administrative fees, $14.64 in costs, and $7,498.95 in attorney's fees. That the award be made payable directly to Mills, not her attorney. Signed by Chief Judge Gary L. Sharpe on 4/1/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
BETTY ANN MILLS,
Plaintiff,

5:11-cv-955
(GLS)

v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,1
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Olinsky Law Group
300 S. State Street
5th Floor, Suite 520
Syracuse, NY 13202
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261

HOWARD D. OLINSKY, ESQ.

SERGEI ADEN
Special Assistant U.S. Attorney

Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278

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The Clerk is directed to substitute Carolyn W. Colvin, Acting Commissioner of Social
Security, for defendant Michael J. Astrue, and amend the caption accordingly. See Fed. R.
Civ. P. 25(d).

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Betty Ann Mills moves for an award of attorney fees under
the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). (See Dkt.
No. 18.) In response, the Commissioner of Social Security claims that
Mills is not entitled to any fees as the commission was “substantially
justified” in its defense of the administrative denial of Mills’ benefits. (Dkt.
No. 19 at 1-6.) Alternatively, the Commissioner claims that “special
circumstances in this case make an award of EAJA fees unjust.” (Id. at 68.) For the reasons that follow, Mills’ motion is granted, however, the fee
requested is reduced.
II. Background
On August 12, 2011, Mills commenced the present action
challenging the Commissioner’s denial of Disability Insurance Benefits
(DIB) and Supplemental Security Income (SSI) under the Social Security
Act (“the Act”). (See generally Compl.) On December 21, 2012, this court
entered an Order remanding the case to the Commissioner, pursuant to
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sentence four of 42 U.S.C. § 405(g), for further proceedings. (See Dkt.
No. 16.) Mills now seeks a total of $9,429.49 in attorney’s fees and costs
pursuant to the EAJA. (See Dkt. No. 18 at 1; Dkt. No. 20 at 9.)
III. Standard of Review
Under the EAJA,
“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).
IV. Discussion
A.

Substantial Justification
A plaintiff seeking attorney’s fees under the EAJA must allege that

the government’s underlying position was not substantially justified. See
28 U.S.C. § 2412(d)(1)(B). Once the plaintiff has done so, the burden
shifts to the Commissioner to establish that its opposition was substantially
justified. See Commodity Futures Trading Comm’n v. Dunn, 169 F.3d 785,
786 (2d Cir. 1999). In order to determine whether the government was
“‘substantially justified,’ courts are to apply a standard of reasonableness.”
3

Green v. Bowen, 877 F.2d 204, 207 (2d Cir.1989) (quoting Pierce v.
Underwood, 487 U.S. 552, 565 (1988)). While the substantial justification
standard “should not be read to raise a presumption that the [g]overnment
position was not substantially justified, simply because it lost the case,”
Cohen v Bowen, 837 F.2d 582, 585 (2d Cir. 1988) (internal quotation
marks and citations omitted), the government has the burden of proof on
the substantial justification issue and a “strong showing” is required to
satisfy this burden, Envtl. Defense Fund, Inc. v. Watt, 722 F.2d 1081, 1085
(2d Cir. 1983); see Rosado v. Bowen, 823 F.2d 40, 42 (2d Cir. 1987)
(holding that the government must show that its action was justified in law
and fact). The standard “is a middle ground between the automatic
awarding of fees to a prevailing party, and the allowance of a fee award
only where the government is arbitrary and frivolous.” Cohen, 837 F.2d at
585 n.4 (internal quotation marks omitted).
Here the Commissioner argues that the government’s case had a
reasonable basis in law and fact and, thus, Mills is not entitled to any
attorney’s fees. (See Dkt. No. 19 at 1-6.) Specifically, the Commissioner
contends that, because Mills failed to present any evidence to support the
presence of a mental impairment, the ALJ’s inclusion in his residual
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functional capacity (RFC) determination of functional limitations accounting
for such impairment, that were not supported by substantial evidence, was
harmless error. (See id. at 3-4.) However, “[i]t is a well-settled rule in the
Second Circuit that the Commissioner must affirmatively develop the
administrative record due to the essentially non-adversarial nature of a
benefits proceeding.” Felder v. Astrue, No. 10-cv-5747, 2012 WL
3993594, at *11 (E.D.N.Y. Sept. 11, 2012) (quoting Garcia v. Apfel, No. 98
CIV. 1370, 1999 WL 1059968, at *5 (S.D.N.Y. Nov.19, 1999)); see Rosa v.
Callahan, 168 F.3d 72, 79 (2d Cir. 1999). Here, Mills reported that she
was being treated for depression, had been prescribed medication for such
impairment, and experienced difficulty interacting with others due to such
impairment—a functional limitation not accounted for in the ALJ’s RFC
determination. (See Tr.2 at 52-55, 78, 226, 228). Thus, the ALJ’s failure,
during the administrative proceeding, to develop the record fully with
respect to Mills’ mental impairment was not reasonable. See Vincent v.
Comm’r of Soc. Sec., 651 F.3d 299, 305 (2d Cir.2011) (“The duty of the
ALJ, unlike that of a judge at trial, is to investigate and develop the facts

2

Page references preceded by “Tr.” are to the Administrative Transcript. (See Dkt.

No. 10.)
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and develop the arguments both for and against the granting of benefits.”)
(internal quotation marks and citations omitted)); cf. Haskins v. Comm’r of
Soc. Sec., Civ. No. 5:05-CV-292, 2008 WL 5113781, at *7 n.5 (N.D.N.Y.
Nov. 25, 2008).
Further, according to the Commissioner, the position that the record
was adequately developed with respect to Mills physical limitations was
substantially justified because: (1) the treatment notes of her treating
physicians did not indicate more than minimal limitations; and (2) the lack
of a medical source statement does not make a medical report incomplete.
(See Dkt. No. 19 at 4-6.) Specifically, prior to undergoing aortic valve
replacement, Mills’ treating physician restricted her from lifting, pushing, or
pulling over thirty pounds, which restriction he continued after the
procedure. (See id.; Tr. at 386.) Immediately after the procedure, Mills
was restricted from driving, performing heavy exertion, or lifting more than
five pounds for three weeks until her followup visit, at which time no
limitations were specified. (See Dkt. No. 19 at 4; Tr. at 289, 410.) Other
than these restrictions contained in treatment records regarding her aortic
valve disorder, the ALJ had no opinion regarding Mills’ functional abilities
from any medical source to rely on.
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Given that the ALJ found Mills to suffer from numerous severe
impairments, including central disc herniation, canal stenosis, osteophytes,
atelectasis, and obesity, and that Mills reported difficulty sitting, walking,
climbing stairs, kneeling, squatting, and reaching as well as experiencing
chronic shortness of breath and fatigue, (see Tr. at 47-52, 77, 225-26), the
limited evidence in the record of Mill’s functional limitations was not
sufficient evidence to rely on in making his RFC determination. See 20
C.F.R. 404.1512(e) (2012) (indicating that when the evidence the
Commissioner receives from treating physicians or other medical sources
is inadequate to determine whether the claimant is disabled, additional
information will be requested);3 Dailey v. Astrue, No. 09-CV-0099, 2010
WL 4703599, at *11 (W.D.N.Y. Oct. 26, 2010) (explaining that, in the
absence of evidence of a claimant’s functional limitations, an ALJ should
order a consultative examination or attempt to contact treating physicians
to complete the record in order to make a proper RFC determination).
Accordingly, in light of the ALJ’s burden to fully develop the record, the
court concludes that the Commissioner was not substantially justified in
3

As of March 26, 2012, the Commissioner amended 20 C.F.R. § 404.1512 to remove
subsection (e). See Lowry v. Astrue, 474 F. App’x. 801, 805 n.2 (2d Cir. 2012). However, this
court should apply the regulation in force at the time of the ALJ’s opinion. See id.
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defending the administrative denial.
B.

Special Circumstances
In rare situations equitable considerations make an award of

attorney’s fees under the EAJA unjust. See, e.g., United States v. 27.09
Acres of Land, 43 F.3d 769, 772 (2d Cir. 1994). The Second Circuit has
held that a fee award may be denied “‘where all of the fees were expended
on discrete efforts that achieved no appreciable advantage, and where the
claim of the prevailing party rests on a result to which the claimant made
no contribution.’” Firstland Int'l, Inc., v. U.S. Immigration & Naturalization
Servs., 264 F. App’x. 22, 25 (2d Cir. 2008) (quoting 27.09 Acres of Land,
43 F.3d at 773). In the context of Social Security appeals, “[b]ecause of
the ALJ’s duty to investigate, if counsel’s entitlement to fees is questioned
due to an undeveloped record, it must be clear that counsel bore primary
responsibility for those deficiencies before the fee recovery is reduced.”
Vincent v. Comm’r of Soc. Sec., 651 F.3d 299, 305 (2d Cir. 2011).
Here, the Commissioner contends that “[t]here is no indication that
[Mills], on her own or through her representative, ever indicated to the ALJ
that a medical source statement was required for the ALJ to adjudicate her
claim [or] attempted to submit any additional medical evidence to the
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Appeals Council.” (Dkt. No. 19 at 7.) Nevertheless, the court does not find
that these omissions constitute special circumstances sufficient to deny
EAJA fees. Indeed, Mills argued before the ALJ and Appeals Council,
through her counsel, that she was being treated for depression which
caused her limitations that kept her from working. (See Tr. at 52-55, 26162, 266-67.) In addition, Mills notified the ALJ and Appeals Council of
outstanding medical records from Pulmonary Health Physicians and
University Hospital, and argued before the Appeals Council that the ALJ
erred by failing to “re-contact [her] treating sources to obtain an opinion of
[her] limitations.” (Id .at 267-68.) As such, and in light of the ALJ’s duty to
investigate and develop the facts, it cannot be conclusively said that
counsel bore primary responsibility for the deficit in the record or that
counsel failed to meet the obligation “to assist the claimant in bringing to
[the Commissioner’s] attention everything that shows that the claimant is
disabled.” 20 C.F.R. § 404.1740(b)(1); see Vincent, 651 F.3d at 305.
Accordingly, the court finds that an award of fees under the EAJA is
appropriate.
C.

The Award
The EAJA provides for the allowance of “reasonable attorney fees.”
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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.” Manning
v. Astrue, No. 5:09-CV-88, 2011 WL 6842617, at *2 (N.D.N.Y. Dec. 29,
2011) (internal quotation marks and citations omitted). The applicant has
the burden of establishing to the court’s satisfaction the reasonableness of
the hours expended and rates charged. See Hensley v. Eckerhart, 461
U.S. 424, 433 (1983). With respect to hours expended, “[d]istrict courts in
the Second Circuit have held that, on average, an attorney spends twenty
to forty hours on routine social security cases.” Coughlin v. Astrue, No. 06CV-0497, 2009 WL 3165744, at *2 (N.D.N.Y. Sept. 28, 2009). With
respect to the rate charged, section 2412(d)(2)(A) dictates 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 for the proceedings involved,
justifies a higher fee.”
Here, Mills seeks an award of attorney’s fees of $8,701.31. (See
Dkt. No. 18 at 1.) The calculation of attorney’s fees is based on a total of
5.6 hours worked in 2011 at a rate of $185.04 per hour, 38.3 hours worked
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in 2012 at a rate of $187.87 per hour, and 2.5 hours worked in 2013 at a
rate of $187.87. (See id.)4 The rates adduced by Mills, which have been
adjusted based on the Consumer Price Index to account for a cost-of-living
increase, (see Dkt. No. 18, Attach. 1 ¶ 6), are unopposed by the
Commissioner, (see Dkt. No. 19), and are reasonable. However, in light of
the fact that the underlying action presented no novel legal issues, the 496page administrative transcript was not unusually burdensome, and the
same law firm represented Mills in her administrative proceedings, the
generally accepted twenty-to-forty hour range appears sufficient, and the
number of hours for which Mills is entitled to receive attorney’s fees is
reduced to forty. Accordingly, Mills is entitled to a total award of $7,569.59,
which is comprised of $56 in administrative fees, $14.64 in costs, and
$7,498.95 in attorney’s fees.5
Mills assigned her interest in attorney’s fees and costs, and requests
that they be paid directly to her attorney. (See Dkt. No. 18, Attach. 2 ¶ 5.)
“The fact that the [EAJA] awards to the prevailing party fees in which her

4

Mills further seeks an additional $657.54 for 3.5 hours spent in 2013 completing the
reply papers relating to the instant motion. (See Dkt. No. 20 at 9.)
5

The attorney’s fee calculation is based on 5.6 hours worked in 2011 at a rate of
$185.04 per hour, and 34.4 hours worked in 2012 at a rate of $187.87 per hour.
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attorney may have a beneficial interest or a contractual right does not,”
however, “establish that the statute ‘awards’ the fees directly to the
attorney.” Astrue v. Ratliff, 130 S. Ct. 2521, 2526 (2010). Instead, the
EAJA “‘awards’ the fees to the litigant, and thus subjects them to a federal
administrative offset if the litigant has outstanding debts.” Id. at 2527.
Accordingly, consistent with the application of Ratliff within this Circuit, “‘the
name on the check must be plaintiff’s and not her attorney’s.’” Manning,
2011 WL 6842617, at *2 (quoting Scott v. Astrue, No. 08-CV-910A, 2011
WL 32544, at *3 (W.D.N.Y. Jan. 5, 2011)).
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the Clerk is directed to substitute Carolyn W. Colvin,
Acting Commissioner of Social Security, for defendant Michael J. Astrue,
and amend the caption accordingly; and it is further
ORDERED that Mills’ motion for attorney’s fees and costs (Dkt. No.
18) is GRANTED, but the award is reduced to $7,569.59, which is
comprised of $56 in administrative fees, $14.64 in costs, and $7,498.95 in
attorney's fees; and it is further
ORDERED that the award be made payable directly to Mills, not her
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attorney; and it is further
ORDERED that the Clerk provide a copy of this Summary Order to
the parties.
IT IS SO ORDERED.
April 11, 2013
Albany, New York

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