Szefler v. Colvin
ORDER granting 19 Motion for Attorney Fees. Signed by Hon. Michael A. Telesca on 1/26/17. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CAROLYN W. COLVIN, Acting
Commissioner OF Social Security,
following the Commissioner of Social Security’s denial of his
application for disability insurance benefits pursuant to the
Social Security Act (the “SSA”).
Plaintiff’s attorney, Kenneth
Hiller, Esq., has filed a motion pursuant to the Equal Access To
Justice Act (“EAJA”), 28 U.S.C. § 2412 requesting attorney’s fees
in the amount of $8,764.84, which represents 46 hours of work in
connection with his firm’s successful representation on behalf of
Plaintiff’s application for disability insurance benefits was
filed on July 21, 2010 and was initially denied.
denial of benefits, plaintiff was granted a hearing before an
administrative law judge (“ALJ”), who later issued a written
decision denying benefits.
The ALJ’s decision became final on
August 30, 2013, when the Appeals Council denied plaintiff’s
request for review.
Plaintiff filed the present action seeking
judicial review of the ALJ’s final decision pursuant to 42 U.S.C.
§ 405(g), which resulted in the Court remanding the case for
further administrative proceedings on September 30, 2015. In doing
so, the Court relied upon and adopted the Report and Recommendation
(“R&R”) of United States Magistrate Judge Hugh B. Scott.
The Commissioner opposes plaintiff’s petition and asks the
justified.” (Docket No. 21, p.1). The Commissioner further asserts
that the number of hours requested by plaintiff’s counsel is
excessive for a “routine Social Security matter.”
responds that the Commissioner’s defense of the action was not
substantially justified due to the failure of the ALJ to include
determination of plaintiff’s residual functional capacity (“RFC”).
Plaintiff further asserts that district courts have not hesitated
to award fees in excess of 40 hours for a Social Security case, if
For the reasons set forth below, this Court grants
plaintiff’s motion for EAJA fees.
The EAJA provides in relevant part that:
Except as otherwise specifically provided by statute, 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
28 U.S.C. § 2412(d)(1)(A).
There is no dispute that plaintiff is
the prevailing party for purposes of the EAJA.
asserts, however, that her position was substantially justified and
the hours requested by counsel are excessive.
Here, Judge Scott found that the ALJ’s RFC determination that
supported by substantial evidence in the record and constituted
Commissioner was not substantially justified in defending the ALJ’s
RFC determination that plaintiff could “occasionally understand,
remember and carry out complex and detailed tasks” where the record
performing no more than simple tasks. ALJ’s decision, p. 5.
R&R also concluded that remand was also required because the
limitation regarding plaintiff’s concentration, persistence and
With respect to the reasonableness of the requested fee award,
plaintiff’s attorney are excessive, citing the general proposition
that 20 to 40 hours of work is appropriate on a routine Social
Security case. See Barbour v. Colvin, 993 F. Supp. 2d 284, 290
(E.D.N.Y. 2014) (“District courts in this Circuit generally hold
that twenty to forty hours is a reasonable expenditure of counsel
time for routine social security cases.”).
The Commissioner does
not argue that the hourly rate requested is unreasonable but
asserts that the fees requested should be reduced to reflect
33 hours of work.
This Court has broad discretion to determine whether the
amount of time expended and the rates charged by plaintiff’s
“scrutinize each action taken or the time spent on it” when
determining what is reasonable. Aston v. Sec'y. of Health and Human
Eckerhart, 461 U.S. 424, 433 (1983).
Mr. Hiller submitted a sworn declaration establishing the time
spent on his representation of plaintiff. Mr. Hiller contends that
the time expended on plaintiff’s case was reasonable, considering
the relative complexity of the issues presented and the fact that
plaintiff filed an initial motion for judgment on the pleadings and
a reply memorandum of law, reviewed the R&R, and prepared a
response to the Commissioner’s extensive filing of objections to
The Court has reviewed Mr. Hiller’s submissions and finds
that his request is unreasonable. See Fee v. Astrue, 2013 WL
5703208, at *2 (W.D.N.Y. 2013), citing 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, 1995 WL 307604, at *3-4
(W.D.N.Y. 1995) (awarding fees for 51.9 hours of attorney time
spent on matter presenting complicated medical issues).
notes that, apart from the number of hours expended on plaintiff’s
representation spanned more than two years.
For the foregoing reasons, plaintiff’s motion for attorney
fees is granted.
ALL OF THE ABOVE IS SO ORDERED.
S/ MICHAEL A. TELESCA
HONORABLE MICHAEL A. TELESCA
UNITED STATES DISTRICT JUDGE
DATED: Rochester, New York
January 26, 2017
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