Szefler v. Colvin

Filing 24

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
JASON SZEFLER,
Plaintiff,

13-CV-1074

-v-

DECISION AND
ORDER

CAROLYN W. COLVIN, Acting
Commissioner OF Social Security,
Defendant.
I.

Introduction
Plaintiff

Jason

Szefler

(“plaintiff”)

brought

an

action

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.
II.

Background
Plaintiff’s application for disability insurance benefits was

filed on July 21, 2010 and was initially denied.

Following the

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
Court

to

reduce

Commissioner’s

the

position

award,

in

this

contending
action

was

that

the

“substantially

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.”

Plaintiff

responds that the Commissioner’s defense of the action was not
substantially justified due to the failure of the ALJ to include
plaintiff’s

limitations

in

maintaining

attention

in

his

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
warranted.

For the reasons set forth below, this Court grants

plaintiff’s motion for EAJA fees.
II.

Discussion
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
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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).

There is no dispute that plaintiff is

the prevailing party for purposes of the EAJA.

The Commissioner

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
plaintiff

could

perform

complex

and

detailed

tasks

was

not

supported by substantial evidence in the record and constituted
clear

error.

Consequently,

the

Court

now

finds

that

the

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
evidence

clearly

establishes

that

plaintiff

was

capable

performing no more than simple tasks. ALJ’s decision, p. 5.

of
The

R&R also concluded that remand was also required because the
hypothetical

question

posed

to

the

VE

failed

to

include

any

limitation regarding plaintiff’s concentration, persistence and
pace.
With respect to the reasonableness of the requested fee award,
the

Commissioner

contends

that

the

work

hours

submitted

by

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
3

(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
attorney

are

reasonable,

and

the

Court

is

not

required

to

“scrutinize each action taken or the time spent on it” when
determining what is reasonable. Aston v. Sec'y. of Health and Human
Serv.,

808

F.2d

9,

11

(2d

Cir.

1986);

see

also

Hensley

v.

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 R&R.
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.

4

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).

The Court

notes that, apart from the number of hours expended on plaintiff’s
case,

the

attorney

declaration

reveals

that

counsel’s

representation spanned more than two years.
III. CONCLUSION
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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