Mirabito v. Commissioner of Social Security

Filing 17

DECISION AND ORDER granting in part and denying in part Plaintiff's 16 Motion for Attorney Fees. Plaintiff is awarded costs and attorney's fees in the amount of $8,379.05. Signed by Magistrate Judge David E. Peebles on 4/3/2014. (amt)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK

ELIZABETH ANN MIRABITO,
Plaintiff,

Civil Action No.
5:13-CV-0462 (DEP)

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF:
OLINSKY LAW GROUP
300 S. State Street
5th Floor, Suite 520
Syracuse, NY 13202

HOWARD D. OLINSKY, ESQ.
JILLIAN C. KARAS, ESQ.

FOR DEFENDANT
HON. RICHARD S. HARTUNIAN
United States Attorney
P.O. Box 7198
100 S. Clinton Street
Syracuse, NY 13261-7198
DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE

PETER W. JEWETT, ESQ.
Special Assistant U.S. Attorney

DECISION AND ORDER
Plaintiff Elizabeth Ann Mirabito, who has successfully challenged a
determination by the Acting Commissioner of Social Security (“Acting
Commissioner”) denying her application for Social Security benefits, now
seeks recovery of costs and attorney’s fees pursuant to the Equal Access
to Justice Act (“EAJA”), 28 U.S.C. § 2412. The Acting Commissioner has
filed no opposition to plaintiff's application. For the reasons set forth
below, with one minor exception, plaintiff’s application is granted.
I.

BACKGROUND
Plaintiff commenced this action on April 24, 2013, requesting judicial

review of an adverse administrative determination by the Acting
Commissioner denying her application for disability insurance benefits,
pursuant to 42 U.S.C. § 405(g). Dkt. No. 1. In accordance with this
court’s protocol set forth in General Order No. 18, the matter was
considered, once issue was joined, as if cross-motions for judgment on the
pleadings had been filed pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure.
Oral argument concerning the matter was conducted on January 10,
2014, during a telephone conference held on the record. Text Minute
Entry Dated January 10, 2014. At the close of argument, I issued a bench
2

decision in which, after applying the requisite deferential standard of
review, I found that the Acting Commissioner’s determination did not result
from the application of proper legal principles and was not supported by
substantial evidence, and that the Acting Commissioner’s determination
should therefore be vacated and the matter remanded to the agency for
further proceedings. 1 Id. That bench decision was followed by a written
order, dated January 21, 2014, and the subsequent entry of judgment in
plaintiff’s favor on that same date. Dkt. Nos. 15, 16.
On February 28, 2014, having succeeded in overturning the Acting
Commissioner’s determination, plaintiff filed a motion seeking the recovery
of costs and attorney’s fees, pursuant to the EAJA. Dkt. No. 16. In that
application, plaintiff seeks recovery for (1) 43.5 hours of attorney work
performed in 2013 and 2014, to be compensated at an hourly rate of
$192.29; (2) one hour of administrative work, to be compensated at a rate
of $80.00 per hour; and (3) recovery of costs in the amount of $14.43 for
service of the summons and complaint. Id.; see Dkt. No. 16-1. The total
amount sought is $8,459.05.

1

This matter is before me on consent of the parties, pursuant to 28 U.S.C. §
636(c). Dkt. No. 7.
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II.

DISCUSSION
The EAJA provides, in relevant part, as follows:
[A] court shall award to a prevailing party . . . fees
and other expenses . . . incurred by that party in a
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). To qualify for recovery under the EAJA, the
plaintiff must demonstrate that (1) she is a prevailing party; (2) she is
eligible to receive an award; and (3) that position of the United States was
not substantially justified. 28 U.S.C. § 2412(d)(1)(B); see also Smith v.
Astrue, No. 10-CV-0053, 2012 WL 3683538, at *1 (N.D.N.Y. Aug. 24,
2012) (Suddaby, J.); Coughlin v. Astrue, No. 06-CV-0497, 2009 WL
3165744, at *1 (N.D.N.Y. Sept. 28, 2009) (Mordue, J.). In addition, she
must submit an itemized statement from the attorney appearing on her
behalf detailing the time expended and the rates at which the fee request
is calculated. Id. In the event that plaintiff satisfies these criteria, the
plaintiff’s EAJA request may nonetheless be denied upon a finding of
special circumstances making an award unjust. 28 U.S.C. §
2412(d)(1)(A); see also Coughlin, 2009 WL 3165744, at *1.

4

When determining the appropriate amount to award under the EAJA
in a case of this nature, the court retains broad discretion. Smith, 2012
WL 3683538, at *1. In exercising that discretion, the court must consider
the specific facts of the case at hand. Id. at *2; see also Coughlin, 2009
WL 3165744, at *2. Upon reviewing an EAJA application, however, the
court is not required to scrutinize each and every time entry, and may
make a flat, across-the-board reduction based upon its knowledge of the
case and in the sound exercise of its discretion. Id. at *3; Smith, 2012 WL
3683538, at *2.
Plaintiff’s application seeks recovery for a total of 43.5 hours of
attorney time expended in connection with her efforts to overturn the
Acting Commissioner’s determination. It is true, as the defendant argues,
that courts in this circuit have frequently posited that an attorney typically
will spend an average of between twenty and forty hours on a routine
Social Security case. See Coughlin, 2009 WL 3165744, at * 2 (collecting
cases); Mills v. Colvin, No. 11-CV-0955, 2013 WL 1499606, at *3
(N.D.N.Y. Apr. 11, 2013) (Sharpe, J.); Hogan v. Astrue, 539 F. Supp. 2d
680, 682 (W.D.N.Y. 2008). This is not an unyielding rule, however, and
courts in this and other districts have compensated attorneys in similar
situations for more than forty hours of labor. See, e.g., Smith, 2012 WL
5

3683538, at *2 (awarding $10,998.15 in attorney’s fees, reflecting 53.00
hours of attorney time); Scott v. Astrue, 474 F. Supp. 2d 465, 467
(W.D.N.Y. 2007) (awarding EAJA fees for 51 hours of attorney time);
Kania v. Shalala, No. 91-CV-0766, 1995 WL 307604, at *3-4 (W.D.N.Y.
May 10, 1995) (awarding EAJA fees for 58.65 hours of attorney time).
Having carefully reviewed plaintiff’s fee application in the light of the
Acting Commissioner’s opposition, and based upon my knowledge of the
case, I conclude that the amounts sought are not inherently unreasonable.
I do find, however, that plaintiff's attorneys are not entitled to be
compensated for administrative services, since they appear to represent
the type of overhead, non-legal services that are not recoverable under
the EAJA. Hosking v. Astrue, No. 10-CV-0064, 2010 WL 4683917, at *2
(D. Conn. Oct. 1, 2010) (citing cases). I will therefore reduce plaintiff's
application by the amount of $80.00.
III.

SUMMARY AND AWARD
Based upon the foregoing and her application, plaintiff is hereby

awarded a total of $8,379.05, representing compensation for 43.5 hours of
attorney work, to be paid at a rate of $192.29 per hour, and costs of

6

serving the summons and complaint in the action, in the amount of
$14.43.2
Based upon the foregoing it is hereby
ORDERED as follows:
(1)

Plaintiff’s motion for costs and attorney’s fees (Dkt. No. 16) is

GRANTED, in part, and DENIED, in part.
(2)

Plaintiff is hereby awarded costs and attorney’s fees, pursuant

to the EAJA, in the amount of $8,379.05;
(3)

In complying with this order, defendant shall make the award

payable to the plaintiff, but is permitted to mail a check complying with this
order directly to plaintiff’s counsel.
Dated:

April 3, 2014
Syracuse, New York

2

I note that, although plaintiff requests that the fee award be paid directly to
counsel based upon an apparent waiver of direct payment, under the law in the
Second Circuit, any EAJA recovery in the form of a check must be made payable to the
plaintiff, and not her attorneys. See Mills, 2013 WL 1499606, at *4. Defendant may,
however, mail the check to plaintiff’s attorney in recognition of the agreement between
counsel and client. Smith, 2012 WL 368353, at *3.
7