Mitchell v. Colvin

Filing 22

ORDER granting 19 Motion for Attorney Fees. Signed by Hon. Michael A. Telesca on 3/17/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ADRIAN L. MITCHELL,
No. 1:14-CV-00418 (MAT)
DECISION AND ORDER

Plaintiff,
-vsNANCY A. BERRYHILL,1 ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

I.

Introduction
Represented by counsel,1 Adrian L. Mitchell (“plaintiff”)

initially brought this action pursuant to Titles II and XVI of the
Social Security Act (“the Act”), seeking review of the final
decision

of

the

Commissioner

of

Social

Security

(“the

Commissioner”) denying his applications for disability insurance
benefits (“DIB”) and supplemental security income (“SSI”). On
November 15, 2016, this Court reversed that decision and remanded
the case solely for the payment and calculation of benefits. Doc.
17.
Plaintiff now moves for an award of attorney’s fees and costs
pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412, in the amount of $9,478.29, which represents payment for
48.9 hours of attorney time at an hourly rate of $193.83 per hour.

1

Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of
Social Security on January 23, 2017. The Clerk of the Court is instructed to
amend the caption of this case pursuant to Federal Rule of Civil Procedure 25(d)
to reflect the substitution of Acting Commissioner Berryhill as the defendant in
this matter.

The Commissioner has filed a response opposing plaintiff’s motion.
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 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). The Commissioner argues that plaintiff’s
EAJA

request

should

be

denied

because

her

position

in

the

underlying case was “substantially justified.” Doc. 20 at 2-6.
In a report and recommendation (“R&R”) completed in this case,
Magistrate Judge Leslie G. Foschio found that the ALJ improperly
credited the opinion of a reviewing state agency psychologist,
Dr. Mangold, over that of an examining state agency psychologist,
Dr. Ryan, who concluded that the plaintiff had an IQ of 59 which
would result in a presumptive finding of disability under the
Listings.
§

See

12.05(B).

20

C.F.R.

Despite

this

Part

404,

valid

IQ

Subpart

P,

finding, the

Appendix
ALJ

1,

credited

Dr. Mangold’s conclusion that Dr. Ryan’s IQ score “appear[ed] to be
an underestimate of [plaintiff’s] intellectual abilities.” T. 363.
This Court agreed with Judge Foschio’s finding that the ALJ erred

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and adopted the R&R in its entirety in its Decision and Order dated
November 15, 2016.
As the Court pointed out in its Decision and Order remanding
this case, under relevant precedent “it is improper to rely on the
opinion

of

a

non-treating,

non-examining

doctor

because

the

inherent subjectivity of a psychiatric diagnosis requires the
physician

rendering

the

diagnosis

to

personally

observe

the

patient.” Maldonado v. Comm’r of Soc. Sec., 2014 WL 537564, *15
(E.D.N.Y. Feb. 10, 2014)(quoting Fofana v. Astrue, 2011 WL 4987649,
*20 (S.D.N.Y. Aug. 9, 2011) (quoting Velazquez v. Barnhart, 518 F.
Supp. 2d 520, 524 (W.D.N.Y. 2007))). “Accordingly, ‘the conclusions
of a physician who merely reviews a medical file and performs no
examination are entitled to little, if any, weight.’” Id. (quoting
Filocomo v. Charter, 944 F. Supp. 165, 170 n.4 (E.D.N.Y. 1996)).
Considering the well-established precedent, the Court rejects
the Commissioner’s argument that its position in the underlying
case was “substantially justified” for purposes of the EAJA. See,
e.g., Rugless v. Comm’r of Soc. Sec., 2014 WL 2648772,*4 (W.D.N.Y.
June 13, 2014) (noting that it is the Commissioner’s burden to make
a “strong showing” that its position was “substantially justified,”
and finding that where an ALJ fails to apply the correct legal
standard, Commissioner’s opposition is not substantially justified
for purposes of the EAJA). Accordingly, the Court finds that the

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Commissioner was not substantially justified in defending the ALJ’s
rejection of Dr. Ryan’s valid, listing-level IQ score.
The Court must next determine if the hours expended and the
rates charged by plaintiff's attorney are reasonable, which remains
the burden of the fee applicant. See Hensley v. Eckerhart, 461 U.S.
424, 433 (1983). In this Circuit, “[t]he lodestar approach governs
the initial estimate of reasonable fees.” Grant v. Martinez, 973
F.2d 96, 99 (2d Cir. 1992). Under this approach, “the number of
hours reasonably expended on the litigation [are] multiplied by a
reasonable hourly rate.” See Hensley, 461 U.S. at 433; Grant, 973
F.2d at 99. The government argues that the request for fees is
excessive and should be reduced.
The Court has broad discretion to determine the amount of time
reasonably expended, but 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). District courts in this Circuit have held that a routine
social security case generally requires between twenty and forty
hours of attorney time. See e.g., Cruz v. Apfel, 48 F. Supp. 2d
226, 230 (E.D.N.Y. 1999); Grey v. Chater, 1997 WL 12806 at *1
(S.D.N.Y. 1997); Greenidge v. Barnhart, 2005 WL 357318 at note 16
(N.D.N.Y. 2005). This may include the time spent on EAJA fee
applications. See Trichilo v. Sec’y of Health and Human Servs., 823
F.2d 702, 708 (2d Cir. 1987).

4

Plaintiff's

attorney,

Kenneth

Hiller,

Esq.,

submitted

an

affidavit in support of this motion which indicates that he spent
31.0 hours working on plaintiff's case, including one hour spent
preparing the instant motion. Doc. 19-2. Timothy Hiller, Esq.
submitted an affidavit indicating that he spent 17.9 hours working
on plaintiff’s case, including 0.5 hour preparing the instant
motion. Taken together, the hours claimed total 48.9. Plaintiff’s
attorneys seek hourly compensation at the rate of $193.83 per hour,
which they aver is the appropriate hourly rate under the EAJA after
adjustment for inflation using the current Consumer Price Index.
See Ventura v. Barnhart, 2007 WL 1051846, *3 (D. Conn. Mar. 2,
2007) (“Courts in the Second Circuit have repeatedly approved fee
applications under the EAJA based upon an hourly rates adjusted to
reflect increases in the Consumer Price Index.”) (citing cases).
Applying the relevant legal principles, the Court finds that
the amount of attorney’s fees requested is reasonable and rejects
the

Commissioner’s

argument

that

the

request

is

excessive.

Considering the work required in litigating this case, which
included reviewing the lengthy administrative transcript, reviewing
the R&R, responding to the Commissioner’s objections to the R&R,
and preparing the instant motion, the hours claimed by plaintiff’s
attorneys are not unreasonable. Accordingly, plaintiff is awarded
$9,478.29 in attorney’s fees under the EAJA.

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III. Conclusion
For the foregoing reasons, plaintiff’s motion for attorney’s
fees (doc. 19) is granted. The Commissioner is directed to remit to
plaintiff’s counsel $9,478.29.
ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

March 17, 2017
Rochester, New York.

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