Rugless v. Commissioner of Social Security
Filing
22
ORDER granting in part and denying in part 17 Plaintiff's Motion for Attorney Fees and Costs under the EAJA. Plaintiff is awarded $16,418.38 in combined attorneys fees, administrative fees, and costs. The Commissioner is directed to mail any post-offset payment, payable to Plaintiff, to his attorney. Signed by Hon. Michael A. Telesca on 6/13/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
DARRYL L. RUGLESS,
DECISION AND ORDER
No. 6:11-CV-6624(MAT)
Plaintiff,
-vsCOMMISSIONER OF SOCIAL SECURITY,
Defendant.
_______________________________
INTRODUCTION
Represented
by
counsel,
Darryl
L.
Rugless
(“Plaintiff”)
brought this action challenging the decision of the Commissioner of
Social Security (“the Commissioner”) denying his application for
Supplemental Security Income benefits under Title XVI of the Social
Security
Act.
In
a
Decision
and
Order
(Docket
#12)
dated
November 20, 2012, this Court affirmed the Commissioner’s decision
and
dismissed
Plaintiff’s
complaint
with
prejudice.
Judgment
(Docket #13) was entered on November 21, 2012.
Plaintiff’s counsel appealed this Court’s decision to the
United States Court of Appeals for the Second Circuit. In a summary
order and judgment issued December 19, 2013, the Second Circuit
vacated this Court’s decision and remanded Plaintiff’s case to the
Commissioner for further administrative proceedings. See Docket #77
in Rugless v. Commissioner of Social Sec., No. 13-0295 (2d Cir.
Dec. 19, 2013). The Second Circuit’s order was filed as a mandate
(Docket #16) in this Court on February 10, 2014.
Plaintiff has filed a motion (Docket #17) seeking attorney’s
fees, administrative fees, and costs pursuant to the Equal Access
to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A), in the amount
of $19,028.57 for time spent representing Plaintiff before this
Court, prosecuting Plaintiff’s appeal to the Second Circuit, and
preparing
the
instant
EAJA
application.
The
Commissioner
has
opposed the motion (Docket #18), arguing that her position was
“substantially
justified”
and
therefore
a
fee
award
is
not
permitted under the EAJA. The Commissioner alternatively argues
that should the Court find a fee award to be appropriate, it also
should find that Plaintiff’s request is excessive and should be
reduced. Plaintiff has filed a reply (Docket #20).
The matter is now fully submitted and ready for decision. For
the reasons set forth below, I grant in part and deny in part
Plaintiff’s motion for attorney’s fees, administrative fees, and
costs, and award Plaintiff a total of $16,020.26 in attorney’s
fees, $304.00 in administrative fees, and $94.12 in costs.
DISCUSSION
I.
An Award of Attorney’s Fees Under the EAJA
The EAJA “provides that a court shall award attorney’s fees to
a prevailing party in a suit 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.” Aston v. Secretary of Health and Human Servs., 808 F.2d 9,
-2-
10 (2d Cir. 1986) (citing International Woodworkers of Am. v.
Donovan, 769 F.2d 1388, 1390 (9th Cir. 1985)). Thus, to qualify for
an award of attorney’s fees under the EAJA, a claimant must
demonstrate
government’s
that
(1)
he
position
is
in
a
“prevailing
party;”
underlying
action
the
(2)
was
the
not
“substantially justified;” (3) no “special circumstances” make the
award of fees unjust; and (4) the fee application was submitted to
the court within 30 days of the final judgment in the action.
28
U.S.C.A.
§
2412(d)(1)(A).
The
Commissioner
has
placed
component (2) at issue but has not challenged the other components.
A.
Timeliness
EAJA applications must be filed within 30 days of a judgment
becoming “not appealable.” 28 U.S.C. §§ 2412(d)(1)(B), (d)(2)(G).
In cases in which the final judgment has been rendered by a court
of appeals, EAJA applications must be filed within 120 days of the
day the court of appeals enters judgment. See
Myers v. Sullivan,
916 F.2d 659, 671 (11th Cir.1990). The difference is due to the
longer 90 day time frame provided for litigants to file petitions
for writs of certiorari to the Supreme Court. See 28 U.S.C.
§ 2101(c). In this case, Plaintiff filed his application 62 days of
the day the Second Circuit issued its order vacating this Court’s
judgment
and
remanding
the
case
proceedings.
-3-
for
further
administrative
B.
Prevailing Party
The first requirement of the EAJA is that the party seeking
the fee award be the “prevailing party.” E.g., Garcia v. Sullivan,
781
F.Supp.
969,
971
(S.D.N.Y.
1991)
(citing
28
U.S.C.
§ 2412(d)(1)(A)). Plaintiff argues that he is a “prevailing party”
because
the
Second
administrative
§
405(g).
See
Circuit
proceedings
Shalaha
remanded
under
v.
the
sentence
Schaefer,
case
four
509
U.S.
for
of
further
42
U.S.C.
292,
(1993)
(distinguishing between sentence four and sentence six remands
under § 405(g) and providing that only a sentence four remand
amounts to a final judgment entitling plaintiff to EAJA fees). The
Court agrees. See id. at 301 (noting that (providing that “[n]o
holding of this Court has ever denied prevailing party status . .
. to a plaintiff who won a remand order pursuant to sentence four
of § 405(g).”).
C.
Substantial Justification
Having established that Plaintiff is a prevailing party, the
Court turns
to
the
question
of whether
the
Commissioner
has
fulfilled her burden of making a “strong showing” that her position
in the underlying civil action was “substantially justified.”
Sotelo–Aquije v. Slattery, 62 F.3d 54, 57 (2d Cir. 1995). To
successfully oppose an application for attorney’s fees under the
EAJA
by
demonstrating
that
its
position
was
“substantially
justified”, the Commissioner must make a “strong showing” that its
-4-
decision was “reasonable.”
Cohen v. Bowen, 837 F.2d 582, 585
(2d Cir. 1988) (citing Environmental Defense Fund, Inc. v. Watt,
722 F.2d 1081, 1085 (2d Cir. 1983)). However, the Commissioner’s
position can be justified even though it is incorrect. Pierce v.
Underwood, 487 U.S. 552, 564 (1988). In Pierce, the Supreme Court
explained observed that “substantially justified” “has never been
described as meaning ‘justified to a high degree,’ but rather has
been said to be satisfied if there is a ‘genuine dispute,’ or ‘if
reasonable people could differ as to [the appropriateness of the
contested action][.]”’ Id. at 564 (internal and other quotations
and citations omitted). Therefore, the Supreme Court concluded, the
connotation of the word “substantially” the one “most naturally
conveyed
by
the
phrase
[substantially
justified]”
is
not
“‘justified to a high degree,’ but rather ‘justified in substance
or in the main’—that is, justified to a degree that could satisfy
a reasonable person.” Id.
Plaintiff contends that the Commissioner was not substantially
justified because the Administrative Law Judge (“the ALJ”) “failed
to
provide
good
reasoning
for
rejecting
treating
physician
Dr. Carroll’s opinion” and failed to discuss Dr. Carroll’s opinion
that
Plaintiff,
due
to
his
impairments,
had
non-exertional
limitations that would preclude competitive employment. Plaintiff
thus
is
arguing
that
the
Commissioner
was
not
substantially
justified because of these errors of law by the ALJ, and the
-5-
Commissioner’s subsequent defense of these errors. This Court
rejected both of Plaintiff’s arguments, but the Second Circuit’s
decision remanding the case indicates that it agreed with Plaintiff
on these points.
The Commissioner argues that simply because the Second Circuit
found that the ALJ committed errors does not mean that its residual
functional capacity finding was unreasonable. The Commissioner
cites certain clinical notes by treating physician Dr. Carroll’s
that support the ALJ’s finding, such as Plaintiff’s negative
straight leg raising and full strength in all four extremities, as
well as Dr. Wills’ opinion that Plaintiff could do light work
lifting no more than 30 pounds. The Commissioner also points to
this Court’s conclusion that the ALJ’s weighing of the treating
source opinions was supported by substantial evidence, and argues
that this finding is a “powerful indicator of the reasonableness”
of the Commissioner’s litigation position. Defendant’s Memorandum
(“Def’s Mem.”) (Docket #18) at 9 (quoting Friends of Boundary
Waters Wilderness v. Thomas, 53 F.3d 881, 885 (8th Cir. 1995)
(citing United States v. Paisley, 957 F.2d 1161, 1167 (4th Cir.
1992)). However, the Ninth Circuit has observed that “[j]ust as a
reversal
does
not
per
se
make
a
position
not
substantially
justified, such position is not presumptively reasonable simply
because two courts disagreed.” United States v. Real Property at
2659 Roundhill Drive, Alamo, California, 283 F.3d 1146 (9th Cir.
-6-
2002). See also United States v. Thouvenot, Wade & Moerschen, Inc.,
596 F.3d 378, 386 (7th Cir. 2010) (disagreeing with proposition
that “the fact that the government was able to persuade a federal
judge that it had not only a reasonable case, but a winner, should
create an irrebuttable presumption that the government’s position
was substantially justified”).
“When the Commissioner’s decision is reversed by the Court of
Appeals, the [district] court ‘should analyze the actual merits of
the
government’s
litigating
position.’”
Eakin
v.
Astrue,
No. 09 Cv 2823, 2011 WL 6156766, at *2 (N.D. Ill. Dec. 12, 2011)
(quoting Golembiewski v. Barnhart, 382 F.2d 721, 724 (7th Cir.
2004)). In other words, this Court’s EAJA review must be on the
Second Circuit’s evaluation of the merits of the Commissioner’s
decision, and not on this Court’s initial evaluation. Id. (citing
Thouvenot, Wade & Moerschen, Inc., 596 F.3d at 381 (“[The lower
court] must accept the appellate court’s view of the merits as the
premise
citations
for
evaluating
omitted).
The
the
government’s
Seventh
Circuit
position.”);
has
indicated
other
that
“[s]trong language against the government’s position in an opinion
discussing the merits of a key issue is evidence in support of an
award of EAJA fees.” Golembiewski, 382 F.3d at 724
Here, the Second Circuit reversed the Commissioner’s decision
and this Court’s judgment in a summary order. The Second Circuit
found that “[t]he ALJ gave only a conclusory explanation of why
-7-
Dr. Carroll’s opinion regarding [Plaintiff]’s ability to lift
10 lbs. is inconsistent with the record” in disregard of the fact
that it has “consistently held that the failure to provide good
reasons for not crediting the opinion of a claimant’s treating
physician is a ground for remand.” (citations omitted). Courts have
held that an award of fees and costs is appropriate under the EAJA
where
an
ALJ’s
decision
violates
“clear
and
long
judicial
precedent” and fails to comply with the specific requirements of a
Social Security Ruling. See, e.g., Golembiewski, 382 F.3d at 724;
Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir. 2009). Furthermore,
“[c]ourts in the Second Circuit commonly allow EAJA fees where the
treating physician rule is abrogated.” Henriquez v. Chater, No. 94
Civ. 7699 (SS), 1997 WL 45351, at *3 (S.D.N.Y. Feb. 5, 1997)
(citing, inter alia, Garcia v. Sullivan, 781 F. Supp. 969, 973
(S.D.N.Y. 1991) (granting plaintiff EAJA fees where ALJ failed to
apply the treating physician rule); Brown v. Sullivan, 724 F.Supp.
76, 77 (W.D.N.Y. 1989) (holding that “[a] position of the Secretary
which
is
contrary
to
clearly
established
circuit
precedent
obviously cannot have a reasonable basis in the law” where ALJ and
Secretary disregarded, inter alia, the treating physician rule)
(citations and internal quotation marks omitted)). Given that the
Second Circuit found the violation of the treating physician rule
in this case so clearly apparent, and that it described the ALJ’s
assessment of the treating physician’s opinion as “conclusory” the
-8-
Court finds that the Commissioner was not substantially justified
in defending the ALJ’s assessment of the treating source’s opinion.
See e.g., Eakin, 2011 WL 6156766, at *4 (“It is . . . clear from
the
Seventh
Circuit’s
opinion
that
the
Commissioner
was
not
substantially justified in defending the ALJ’s decision because she
gave ‘short shrift’ to Dr. Mess’s opinion and failed to apply the
correct legal standard in determining what weight to assign it.”).
D.
Factors That Make an Award of Fees Unjust
The
Commissioner
has
not
argued
that
there
are
any.
Accordingly, the Court proceeds to determine the reasonableness of
Plaintiff’s fee request.
II.
Reasonableness of Plaintiff’s Fee Request
Once a party has established entitlement to fees under the
EAJA, the court must calculate what constitutes a reasonable
attorney’s fee using the “lodestar approach”. Grant v. Martinez,
973 F.2d 96, 99 (2d Cir. 1992) (citing Blanchard v. Bergeron, 489
U.S. 87, 94 (1989); Hensley v. Eckerhart, 461 U.S. 424, 433
(1983)). “Under this approach, the number of hours reasonably
expended on the litigation is multiplied by a reasonable hourly
rate for attorneys and paraprofessionals.” Id.
The Supreme Court has explained that “the fee applicant bears
the burden of establishing entitlement to an award and documenting
the appropriate hours expended and hourly rates. The [attorney]
should exercise ‘billing judgment’ with respect to hours worked .
-9-
. . and should maintain billing time records in a manner that will
enable a reviewing court to identify distinct claims.”
Hensley,
461 U.S. at 433 (citing Nadeau v. Helgemoe, 581 F.2d 275, 279
(1st Cir. 1978)).
Courts should exclude from the initial fee
calculation hours that were not reasonably expended, included
excessive, redundant, or otherwise unnecessary work.
Hensley, 461
U.S. at 434.
A.
Hours Billed
In support of her argument that the attorney’s fees requested
are
“excessive”,
the
Commissioner
argues
that
“a
review
of
Plaintiff’s appeal reveals that creating the appeal did not involve
any new research or substantial briefing.” Def’s Mem. at 7 (Docket
#18). The Commissioner reproduces four passages from Plaintiff’s
briefs before this Court and on appeal and notes that they are
nearly the same, word for word. See id. at 7-9 (citations omitted).
Plaintiff does not dispute the similarities in the arguments, but
reasonably asserts that it was necessary to include them at the
appellate level. The Court has reviewed Plaintiff’s district court
brief against the brief submitted on appeal to the Second Circuit
and agrees that they are substantially different in substance. The
appellate brief contains a more detailed and exhaustive summary of
the medical evidence and greatly expands on the arguments initially
presented in the district court brief. In addition, Plaintiff filed
a 13-page reply brief in response to the Commissioner’s appellate
-10-
brief.
Therefore,
the
Court
rejects,
in
the
main,
the
Commissioner’s argument that all of Plaintiff’s attorney’s work on
his appeal amounted to double-billing.
However, the Court finds
that amounts billed for researching and drafting the initial brief
on appeal (a total of 32.6 hours)1 should be reduced somewhat
because there is some overlap between it and the district court
brief. The
Court
has determined
reduction.
Therefore,
Plaintiff
that
is
25%
is
entitled
the
to
appropriate
payment
for
24.5 billable hours researching and drafting the initial appellate
brief.2
The Commissioner does not challenge any of the other entries
in Plaintiff’s itemized billing records. See Docket #17-1 at pages
16-17 of 18. Plaintiff has 3.8 hours in billed attorney time in
2011; 35.3 hours in billed attorney time in 2012; and 55 hours in
billed attorney time in 2013, for a total of 94.1 hours. However,
this Court has carefully reviewed the billing records and finds
that several entries are excessive. The Court strikes the following
entries from the 2012 records: 01/11/12 (0.2 hour, “review Order
granting IFP and issued summonses”); 08/02/12 (0.1 hour, “review
text
order
for
scheduling
Response
due
date,
update
case
1
See Docket #17-1 at pages 16-17 of 18 (04/25/13, 8.0 hours; 04/26/13, 8.0
hours; 04/29/13, 2.1 hours; 04/29/13, 5.0 hours; 04/30/13, 2.0 hours; 04/30/13,
2.5 hours; 04/30/13, 5.0 hours).
2
All of these hours were expended in 2013.
-11-
tracking”); and 10/19/12 (0.1 hour, “review Order assigning case”),
for a total of 0.4 hours.
The Court strikes the following entries from the 2013 records:
01/17/13 (0.1 hour, “Review Docket Text re: Forms C and D”);
01/29/13 (0.2 hour, “Review Second Circuit Docket text re: Notice
of Appeal”); 02/22/13 (0.1 hour, “Review Electronic Index in lieu
of record); 02/22/13 (0.1 hour, “Review Order re: scheduling
notification); 05/01/13 (0.1 hour, “Review Order re: scheduling
notification as to due date of Defendant’s brief”); 05/16/13
(0.1 hour, “Review request by Clerk for additional paper copies of
Joint Appendix”); 10/08/13 (0.1 hour, “Review Case Calendering re:
on
submission”);
Notice”), for
and
10/18/13
(0.1
hour,
“Review
Submitted
a total of 0.9 hours.
With these entries removed from the records for the billed
attorney time, Plaintiff has following hours of attorney time for
which he can recover: 3.8 hours in 2011; 34.9 (35.3 - 0.4) hours in
2012; 24.5 hours (as adjusted) for preparing appellate brief in
2013; and 21.5 (22.4 - 0.9) hours spent on other appellate-related
tasks and preparing EAJA motion in 2013. For 2013, then, the total
attorney hours are 46 hours (24.5 + 21.5).
B.
Appropriate Hourly Rate
The Court next turns to the question of the appropriate hourly
rate. The EAJA provides that “attorney fees shall not be awarded in
excess of $125.00 per hour unless the court determines that an
-12-
increase in the cost of living . . . justifies a higher fee.”
28 U.S.C. § 2412(d)(2)(A)(ii). The EAJA was enacted in March of
1996, when the consumer price index (“CPI”) was 160.1. See Docket
#17-1 at p. 14 of 18. Plaintiff asserts that “applying the cost of
living increase to $125.00 per hour yields an hourly rate of
$191.87 for . . . work hours performed through 2014.” Docket #17-1
at p. 3 of 18. However, Plaintiff’s attached billing records
indicate the last billable hours were in July of 2013. Id. at p. 17
of 18. Furthermore, it is unclear how Plaintiff arrived at the rate
of $191.87 for all of the years from 2011 (the commencement of this
action) through 2014. The documents Plaintiff has attached to his
motion indicate that the EAJA rate as modified by the yearly CPI
was $186.90 per hour in 2011; $188.82 per hour in 2012; and $189.57
per hour in 2013. See Docket #17-1 at pp. 14-15 of 18. Applying
these rates to the total hours the Court has found allowable,
Plaintiff is entitled to payment of
$710.22 (3.8 × $186.90) for
2011; $6,589.82 (34.9 attorney hours × $188.82) for 2012; and
$8,720.22 (46 attorney hours × $189.57) for 2013. This yields a
total in attorney’s fees of $16,020.26.
The Commissioner does not challenge the administrative fees
billed in the amount of $304.00 (3.8 hours at $80.00) or the costs
assessed in the amount of $94.12. See Docket #17-1 at p. 18 of 18.
-13-
Therefore, the total recoverable by Plaintiff under the EAJA
is
$16,418.38
($16,020.26
in
attorney’s
fees
+
$304.00
in
administrative fees + $94.12 in costs).
C.
Whether the Award Should be Paid to the Attorneys or
Plaintiff
Plaintiff’s counsel has attached a “duly executed Affidavit of
Direct Payment” by Plaintiff “so that the payment of EAJA fees can
be directly to [counsel] if Plaintiff does not have a federal debt
at the time EAJA [award] is paid.” Docket #17-1, ¶ 9 (citing Astrue
v. Ratliff, ___ U.S. ___, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010)).
In Ratcliff, the Supreme Court noted,
[t]he fact that the statute awards to the prevailing
party fees in which her attorney may have a beneficial
interest or a contractual right does not establish that
the statute “awards” the fees directly to the attorney.
For the reasons we have explained, the statute’s plain
text does the opposite—it “awards” the fees to the
litigant, and thus subjects them to a federal
administrative offset if the litigant has outstanding
federal debts.
Id. at 2526–27. Consistent with the other district courts in the
Second Circuit to have considered the issue, this Court finds that
Ratliff states explicitly that the name on the check must be
Plaintiff’s
and
not
his
attorney’s.
Manning
v.
Astrue,
No.
5:09-CV-88 FJS/VEB, 2011 WL 6842617, at *2 (N.D.N.Y. Dec. 29, 2011)
(citing Scott v. Astrue, No. 08–CV–910A, 2011 WL 32544, at *3
(W.D.N.Y. Jan. 5, 2011)).
However, so long as Plaintiff himself
appears as the payee on the check, there is no reason why the
-14-
Commissioner cannot mail the check to Plaintiff’s counsel pursuant
to the assignment. Id.
CONCLUSION
For the foregoing reasons, the Court grants in part and denies
in part Plaintiff’s motion (Docket #17) for fees and costs under
the EAJA. Plaintiff is awarded $16,418.38 in combined attorney’s
fees, administrative fees, and costs. The Commissioner is directed
to mail any post-offset payment, payable to Plaintiff, to his
attorney.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
June 13, 2014
Rochester, New York
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