Tagliavento v. Colvin

Filing 28

DECISION AND ORDER. Plaintiff's Motion for Attorney Fees 16 is GRANTED and counsel is awarded $7,614.77 in attorney fees. The Commissioner shall promptly pay this sum to Plaintiff's counsel. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 9/5/2017. (AFM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LYNN MARIE TAGLIAVENTO,
Plaintiff,
Case # 15-CV-250-FPG
v.
DECISION AND ORDER
NANCY A. BERRYHILL,1
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.

INTRODUCTION
On September 28, 2016, the Court granted Plaintiff’s Motion for Judgment on the
Pleadings and remanded this case to the Commissioner of Social Security for further administrative
proceedings. ECF No. 14. On September 29, 2016, the Clerk of Court entered Judgment in
Plaintiff’s favor. ECF No. 15. On December 28, 2016, Plaintiff applied for $7,614.77 in attorney
fees for 39.3 hours of work pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412
(“EAJA”). ECF No. 16. The Commissioner opposes Plaintiff’s motion and argues that the hours
expended on this case are “excessive and unreasonable.” ECF No. 26 at 2. Specifically, the
Commissioner asserts that the Court should reduce counsel’s request for fees to between 20 and
30 hours because this case was routine and “counsel has extensive experience in practicing Social
Security disability law.” Id. For the reasons that follow, the Court finds that Plaintiff’s attorney
fee application accords with the EAJA and that the hours Plaintiff’s counsel expended are
reasonable. Accordingly, Plaintiff’s motion (ECF No. 16) is GRANTED and counsel is awarded
$7,614.77 in attorney fees.

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Nancy A. Berryhill is now the Acting Commissioner of Social Security and is therefore substituted for
Carolyn W. Colvin as the defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d).

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DISCUSSION
Pursuant to the EAJA, a prevailing party in a Social Security benefits case may be awarded
attorney fees payable by the United States if the Government’s position in the litigation was not
“substantially justified.” 28 U.S.C. § 2412(d)(1)(A). EAJA fees are determined by examining the
amount of time expended on the litigation and the attorney’s hourly rate, which is capped by
statute. See Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002); 28 U.S.C. § 2412(d)(2)(A). “The
Court must determine if the hours expended and the rates charged are reasonable,” Ballard v.
Astrue, 485 F. Supp. 2d 290, 291 (W.D.N.Y. 2007) (citations omitted), and the Court has broad
discretion to determine what amount of time is “reasonably” expended, Aston v. Sec’y of Health
& Human Servs., 808 F.2d 9, 11 (2d Cir. 1986). It is the fee applicant’s burden to establish “to the
court’s satisfaction the reasonableness of the hours expended and rates charged.” Pavia v. Comm’r
of Soc. Sec., No. 5:10-CV-0818 GTS/DEP, 2013 WL 5652497, at *4 (N.D.N.Y. Oct. 15, 2013).
Here, the sole issue is whether the fee sought is “reasonable.” ECF No. 26 at 5-10.
Specifically, the Commissioner asserts that the 39.3 hours Plaintiff’s counsel expended to handle
this case is “excessive and unreasonable.” ECF No. 26 at 5-10. However, as the Commissioner
herself points out, district courts in the Second Circuit “generally hold that twenty to forty hours
is a reasonable expenditure of counsel time for routine social security cases.” Barbour v. Colvin,
993 F. Supp. 2d 284, 290 (E.D.N.Y. 2014) (collecting cases).
Although the Commissioner argues that the Court should reduce counsel’s hours because
this case was straightforward and had a relatively short administrative transcript (ECF No. 26 at
5-7), Plaintiff’s Motion for Judgement on the Pleadings (ECF No. 27) was 26 pages long and
thoroughly recited the facts and discussed the legal arguments. Moreover, a less experienced
attorney prepared the brief (ECF No. 27 at 2 n.2), despite the Commissioner’s assertion that a

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reduction of hours is appropriate based on counsel’s high level of expertise. The Court agrees with
Plaintiff that it was reasonable to bill 23 hours—less than one hour per page of the submitted
motion—to review the transcript, conduct legal research, and draft the motion.
The Commissioner also disputes the hours counsel spent preparing for and traveling to and
from oral argument. ECF No. 26 at 8-9. The Commissioner asserts that four hours to prepare for
oral argument “is excessive given the characteristics of this case and the experience of Plaintiff’s
counsel” and that the three and one-half hours spent traveling to and from and attending the hearing
is unreasonable. Id. The Court agrees with Plaintiff that four hours is a reasonable amount of time
to spend preparing for oral argument, which requires counsel to travel from Buffalo to Rochester
and be prepared to discuss all aspects of the case and answer any questions the Court may have.
Additionally, counsel’s travel time is reimbursable under the EAJA as “fees and other expenses”
because the round trip was required for a court proceeding and not another purpose. See Aston v.
Sec’y of Health & Human Servs., 808 F.2d 9, 12 (2d Cir. 1986) (citing 28 U.S.C. § 2412(d)(2)(A));
Damian v. Sec’y of Health & Human Servs., No. CIV-88-875E, 1991 WL 99065, at *1 n.1
(W.D.N.Y. May 27, 1991).
The Commissioner also objects to the combined one hour that counsel charged for
administrative and clerical tasks. Although district courts sometimes reduce fee awards by
excluding “routine clerical matters not requiring any legal expertise,” see, e.g., James v. Colvin,
66 F. Supp. 3d 365, 367 (W.D.N.Y. 2014), the Court finds that the one hour expended on this case
is reasonable.

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CONCLUSION
Plaintiff’s Motion for Attorney Fees (ECF No. 16) is GRANTED and counsel is awarded
$7,614.77 in attorney fees. The Commissioner shall promptly pay this sum to Plaintiff’s counsel.

IT IS SO ORDERED.
Dated: September 5, 2017
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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