Hupp v. Berryhill
Filing
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ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER granting 20 Motion for Attorney FeesPlaintiff recovers $6,951.24 for her attorney's fees, Docket No. 20.So Ordered. Signed by Hon. Hugh B. Scott on 12/27/2018. (DRH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LAURA LYNN HUPP,
Plaintiff,
Hon. Hugh B. Scott
17CV692
v.
CONSENT
Order
COMMISSIONER,
Defendant.
Before the Court is plaintiff’s motion to recover her attorney’s fees under the Equal
Access to Justice Act (Docket No. 20), 28 U.S.C. § 2412 (“EAJA”). Response to this motion
was due by December 12, 2018 (Docket No. 21), and defendant Commissioner responded
(Docket No. 22) opposing the award of fees. Plaintiff’s reply was due by December 19, 2019
(Docket No. 21), which plaintiff did not file. The matter was submitted, without oral argument,
on December 19, 2019 (see Docket No. 21).
BACKGROUND
Plaintiff, initially proceeding pro se before the Social Security Administration, through
counsel sought judicial review of the denial of Social Security benefits (Docket No. 1, Compl.).
Following argument of her motion for judgment on the pleadings (Docket No. 10) and defendant
Commissioner’s counter motion for judgment on the pleadings (Docket No. 13), this Court (on
August 15, 2018) ordered the remand of this matter to the Commissioner (Docket No. 18; see
Docket No. 19, Judgment entered Aug. 16, 2018).
Plaintiff, on November 14, 2018, filed the pending motion under the EAJA (Docket
No. 20). There, she claims $6,951.24 in attorney’s fees for 34.3 hours of work at the inflated1
rate of $202.68 per hour (id., Pl. Atty. Decl. ¶ 3; id., Pl. Memo. at 4, 5). She claims she filed a
timely EAJA application (id., Pl. Memo. at 2), that she was the prevailing party with net assets
below the threshold that would bar recovery under the act (id. at 2-3). Plaintiff contends that
defendant was not substantially justified in opposing relief because the Commissioner’s decision
was not supported by substantial evidence in the failure of the Administrative Law Judge to
develop the record for plaintiff as a pro se claimant (id. at 3-4; see Docket No. 10, Pl. Memo. at
8-14; see also Docket No. 18, Order at 4-6).
Defendant opposes this application (Docket No. 22, Def. Memo.), arguing that the
Commissioner’s position was substantially justified and plaintiff needed to demonstrate that
additional evidence not produced by her pro se was material and good cause exists for not
previously offering such evidence before remand to the agency (id. at 2-3). The Commissioner
argues that once a pro se claimant obtains counsel, that attorney may make the strategic decision
not to seek additional material at the administrative level. Then the attorney can argue on
judicial review that the Administrative Law Judge (or “ALJ”) failed to meet the duty to develop
the record in a pro se case. (Id. at 3.) The Commissioner concludes that a “previously pro se
plaintiff should not be permitted to circumvent the materiality and good cause requirements and,
Defendant does not dispute plaintiff’s fee calculation, see Docket No. 22, Def. Memo. at 4 n.2. Plaintiff,
however, inflates the presumptively reasonable attorney’s fee rate from 1996, 28 U.S.C. § 2412(d)(2)(A), as set by
the consumer price index for September 2018, Docket No. 20, Pl. Memo. at 4. Plaintiff notes that some of the work
occurred in 2017 without citing the annual consumer price index for that year or arguing why a rate for 2018 should
universally apply, but cf. Leon o/b/o J.E.V. v. Colvin, No. 15CV914, 2018 WL 4404577, at *4 (W.D.N.Y. Sept. 16,
2018) (Telesca, J.) (plaintiff erred in calculating fee based upon only one year’s pricing when work occurred over
two years); Parnitzke o/b/o A.P. v. Comm’r, No. 17CV454, Docket No. 19, Order at 5, 9-12 (W.D.N.Y. Dec. 20,
2018) (Scott, Mag. J.).
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potentially create delay and expend unnecessary resources, based upon his or her attorney’s
inaction,” while noting that plaintiff’s counsel here acted “appropriately, sincerely, and
effectively” in representing plaintiff (id. at 3-4, 4 n.1).
DISCUSSION
I.
Applicable Standards under the EAJA
Under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(B), a prevailing party may
submit to this Court an application for fees and other expenses. The party must allege that the
Government’s position was not substantially justified, id., as was done here.
“Whether or not the position of the United States was substantially justified shall
be determined on the basis of the record (including the record with respect to the
action or failure to act by the agency upon which the civil action is based) which
is made in the civil action for which fees and other expenses are sought,”
id. This statute requires proof that the claimant is the prevailing party (not contested here); that
the Government’s position was not substantially justified; that no special circumstances make an
award unjust; and that the fee application was submitted within thirty days of entry of final
judgment (which was done here), McMahon v. Novello, 192 F. Supp. 2d 54, 64 (W.D.N.Y.
2001) (Curtin, J.); Kerin v. United States Postal Service, 218 F.3d 185, 189 (2d Cir. 2000).
Once the claimant alleges that the Government’s position was not substantially justified,
the Commissioner bears the burden of showing that their position was in fact substantially
justified. The Supreme Court held that substantially justified is “justified in substance or in the
main – that is, justified to a degree that could satisfy a reasonable person,” Comm’r of INS v.
Jean, 496 U.S. 154, 158 n.6 (1990) (Docket No. 22, Def. Memo. at 1). This Court then reviews
the underlying agency action and the civil action to determine whether the Commissioner’s
position had a “reasonable basis both in law and fact,” Ericksson v. Commissioner of Social
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Security, 557 F.3d 79, 81-82 (2d Cir. 2009) (quoting Pierce v. Underwood, 487 U.S. 552, 563
(1988)) (see Docket No. 20, Pl. Memo. at 3; Docket No. 22, Def. Memo. at 1-2; see also SoteloAquiji v. Slattery, 62 F.3d 54, 57 (2d Cir. 1995) (Miner, J.)).
II.
Substantially Justified
Courts in the Second Circuit establish reasonable compensation for attorney’s fees in
EAJA applications by evaluating the size of the administrative record, the complexity of the
entire appeal, and the substantive issues involved, see Hogan v. Astrue, 539 F. Supp. 2d 680, 682
(W.D.N.Y. 2008) (Larimer, J.), without focusing upon whether the claimant prevailed in many or
all his or her arguments. Judge Larimer in Hogan noted that the Court need not “‘scrutinize each
action taken or the time spend on it’ when determining what is reasonable,” id. (quoting Aston v.
Secretary of Health and Human Servs., 808 F.2d 9, 11 (2d Cir. 1986)), and the Court may apply
“a reasonable percentage reduction” of the time claimed, id. Within this Court’s broad discretion
in considering whether the time was reasonably expended, this Court “need not have scrutinized
each action taken or the time spent on it,” Aston, supra, 808 F.2d at 11, citing New York Ass’n
for Retarded Children v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983); Mitchell v. Berryhill,
No. 14CV418, 2017 U.S. Dist. LEXIS 38800, at *4 (W.D.N.Y. Mar. 17, 2017) (Telesca, J.)
(rejecting defendant’s argument that fee request was excessive).
The purpose of this fee application is not to relitigate the merits of the underlying judicial
review of the ALJ’s decision. Defendant argues that the ALJ’s duty to develop the record for a
pro se claimant requires plaintiff to demonstrate on appeal the materiality of the evidence the
claimant intended to produce and good cause for not offering it before (Docket No. 22, Def.
Memo. at 2-4). As for materiality, the medical record here before the ALJ was so scant, sixteen
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pages, and the ALJ referred to additional material not included in that record and plaintiff did not
point to additional evidence she would have presented (save reference to the uncited sources the
ALJ used in making findings). Plaintiff has not identified the new evidence but merely argues
that the evidence that was presented was scant and insufficient. The absence of evidence is what
is material.
As for good cause, plaintiff proceeding pro se provides good cause for not seeking
admission of additional evidence that she might not have been aware of to seek. Plaintiff’s “pro
se status may excuse her failure to present relevant evidence at an ALJ hearing where the ALJ
failed to make a reasonable effort to acquire the evidence,” Rose v. Commissioner of Soc. Sec.,
202 F. Supp.3d 231, 244 (E.D.N.Y. 2016); Skrodski v. Commissioner of Soc. Sec., No.
11CV5173(MKB), 2012 U.S. Dist. LEXIS 179527, at *17 (E.D.N.Y. Jan. 3, 2013) (claimant’s
pro se status can establish good cause for purposes of remand). This is not a case of plaintiff,
now appearing through counsel, withholding additional evidence from either the ALJ or the
Appeals Council to preserve a claim that the ALJ violated the duty to develop the record on
judicial review, as defendant suggests in the response.
Thus, defendant’s position was not substantially justified. As a result, plaintiff is
entitled to compensation for her attorney’s services.
Defendant does not dispute the reasonableness of the attorney’s fee claimed by plaintiff
(Docket No. 22, Def. Memo. at 4 n.2). The amount of time claimed by plaintiff in this
application, 34.3 hours (Docket No. 20, Pl. Atty. Decl. ¶ 3), is within the range of 20-40 hours
for routine attorney time for Social Security appeals argued in this Circuit, e.g., James v. Colvin,
66 F. Supp. 3d 365, 367 (W.D.N.Y. 2014) (Larimer, J.). While this Court could reexamine the
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plaintiff’s time and rates for reasonableness, absent complaint by defendant this Court will
accept as reasonable plaintiff’s attorney’s fee claim, see Blizzard v. Astrue, 496 F. Supp.2d
320, 324 (S.D.N.Y. 2007) (this Court need not “articulate its judgment as to reasonableness in
terms of a mathematical formula”). This Court could recalculate the rate for services rendered in
2017 and not apply the consumer price index for September 2018 that plaintiff argues is the
reasonable rate but without objection from defendant, the Court will accept plaintiff’s cited
rate. As a result, plaintiff should recover $6,951.24 claimed as reasonable compensation.
CONCLUSION
For the reasons stated above, plaintiff’s motion (Docket No. 20) to recover her attorney’s
fee is granted. Plaintiff recovers $6,951.24 for her attorney’s fee.
So Ordered.
/s/ Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge
Dated: Buffalo, New York
December 27, 2018
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