Martin v. Commissioner of Social Security
Filing
21
DECISION AND ORDER granting Pltf's 19 Motion for Attorney and paralegal Fees in the amount of $10,207.50, and costs and disbursements in the amount of $435.00. Signed by Senior Judge Thomas J. McAvoy on 1/28/13. (sfp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
DAVID C. MARTIN,
Plaintiff,
-against-
7:10-CV-1113
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant
________________________________________
THOMAS J. McAVOY,
Senior United States District Judge
DECISION & ORDER
I.
INTRODUCTION
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.
II.
BACKGROUND
On September 16, 2010, Plaintiff filed a Complaint appealing a final decision of the
Commissioner of Social Security that denied Plaintiff’s claim for benefits. Dkt. # 1.
Although initially referred to Magistrate Judge Treece, the Court issued a Decision & Order
on September 19, 2012. Dkt. # 17. The Court reversed the Commissioner’s decision and
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remanded the matter to the Commissioner pursuant to sentence four of 42 U.S.C. § 405
(g) for further administrative proceedings consistent with the Decision & Order. Id. A final
judgment was entered in favor of Plaintiff on September 19, 2012. Dkt. # 18.
On December 18, 2012, Plaintiff filed a motion seeking attorney and paralegal fees
in the amount of $10,207.50, and costs and disbursements in the amount of $435.00.
Dkt. # 19-1. The sum represents 26.40 hours by Attorney Lawrence Hesseler at a
requested rate of $185.00 per hour; 46.30 hours by Attorney Scott Goldie at a requested
rate of $170.00 per hour; 17.80 hours by Attorney Kelly Coble at a requested rate of
$130.00 per hour; 14.30 hours by Paralegal Sue O’Dell at a requested rate of $75.00 per
hour, and $435.00 in disbursements comprised of $20.00 in photocopy and postage
charges, $65.00 for service of process, and $350.00 for a filing fee. Dkt. 19-2.
III.
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. Timeliness of Motion
A party seeking an award of EAJA fees and other expenses shall file a motion with
the court within thirty (30) days of final judgment in the action. 28 U.S.C. §2412 (d)(1)(B).
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"Final judgment" means a judgment that is final and appealable. 28 U.S.C.
§2412(d)(2)(G). The Supreme Court has held that "[t]he 30-day EAJA clock begins to run
after the time to appeal that 'final judgment' has expired." Melkonyan v. Sullivan, 501 U.S.
89, 111 S. Ct. 2157, 2162, 115 L. Ed.2d 78 (1991). Pursuant to Rule 4(a) of the Federal
Rules of Appellate procedure, in a civil case to which a federal officer is a party, the time
to appeal does not end until 60 days after "entry of a judgment." Shalala v. Schaefer, 509
U.S. 292, 113 S. Ct. 2625, 2632, 125 L. Ed.2d 239 (1993).
The Court issued its Decision & Order on September 19, 2012, reversing the
decision of the Commissioner. A judgment was entered the same day. Sixty (60) days
from September 19, 2012 is December 18, 2012, the date the instant motion was filed.
Thus, the instant application is timely.
b. 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 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
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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 further proceedings, the Court finds the
Commissioner was not substantially justified in challenging the action.1
c. Reasonable Attorney & Paralegal Fees, Costs
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.
Here, Plaintiff’s attorneys spent 90.5 hours for representation of Plaintiff between
October 2008 - December 2011, which largely consisted of time conducting research,
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In light of the failure to file opposition papers, the Commissioner does not argue otherwise.
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drafting memoranda, reviewing court documents, and attending two hearings before the
Commissioner. Given the relatively complex factual issues presented in this case and two
hearings, see e.g. 09/18/12 Dec. & Ord., the Court finds that the expenditure of time was
reasonable. Furthermore, the hourly rate charged by Plaintiff’s attorneys and paralegal,
adjusted for cost of living increases by the Consumer Price Index, is also reasonable. See
Dkt. 19-2; 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”); Kiely v. Astrue, 2012 WL
3727164, at *2 (D. Conn. March 30, 2012)(“Based on its review of the relevant cases, . . .
as well as its familiarity with customary rates charged in this District, the Court finds that a
rate of $100/hour is reasonable for paralegal work performed on a case in which fees are
to be awarded under the EAJA.”).
Finally, the Court finds that the sought after costs are reasonable and will be
included in the instant award. See 28 U.S.C. § 2412(d)(1)(A); Jerolmon v. Astrue, 2013
WL 210898, at *1 (D. Conn. Jan. 18, 2013)(“The motion lies under section 204(d) of the
Equal Access to Justice Act (EAJA), codified in 28 U.S.C. § 2412(d), which provides in
pertinent part that ‘a court shall award to a prevailing party ... fees and other expenses ...
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.’” ).
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IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiff’s motion [dkt. # 19], and
awards attorney and paralegal fees in the amount of $10,207.50, and costs and
disbursements in the amount of $435.00.
IT IS SO ORDERED.
Dated:January 28, 2013
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