Dyer v. Commissioner of Social Security

Filing 27

DECISION & ORDER Dyer's motion for attorney's fees 20 is granted in part and denied in part. The Court determines that the fee award to Dyer's counsel under the EAJA should be as follows: (1) attorney's fees in the amount of � 36;508.56 (2.6 hours at $195.60 per hour), (2) paralegals fees in the amount of $330.00 (3.3 hours at $100 per hour), and (3) costs in the amount of $14.43, for a total award of $852.99. The Commissioner is ordered to pay Dyer $852.99, subject to any outstanding federal debts, and to mail the award to Dyer's attorney within sixty (60) days of the date of entry of this Decision and Order. Signed by Hon. Marian W. Payson on 10/28/2016. (KAH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
ASHLEY A. DYER,
DECISION & ORDER
Plaintiff,
13-CV-6312P
v.
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_______________________________________

Plaintiff Ashley A. Dyer (“Dyer”) brought this action pursuant to Section 205(g)
of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision of the
Commissioner of Social Security (the “Commissioner”) denying her applications for
Supplemental Security Income and Disability Insurance Benefits (“SSI/DIB”). Pursuant to 28
U.S.C. § 636(c), the parties consented to the disposition of this case by a United States
magistrate judge. (Docket # 12). On March 31, 2015, this Court entered a judgment reversing
the Commissioner’s denial of SSI/DIB and remanding the case to the Commissioner pursuant to
42 U.S.C. § 405(g), sentence four, for further administrative proceedings. (Docket ## 18, 19).
Currently before the Court is Dyer’s motion for an award of attorney’s fees
pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A). (Docket
# 20). The EAJA provides:
[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 (other than cases sounding in tort), including
proceedings for judicial review of agency action, brought by or
against the United States in any court having jurisdiction of that
action, 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).
Dyer seeks an award of $7,428.20, consisting of 34.50 hours of attorney work at a
rate of $195.60 an hour, for a total of $6,748.20, and 6.80 hours of paralegal time at $100.00 an
hour, for a total of $680.00. (Docket # 20-1 at ¶¶ 5, 6). Dyer also seeks “reimbursement of costs
of $14.43 for certified mail service of the summons and complaint.” (Id. at ¶ 8). In requesting
this award, Dyer concedes that her attorney, Howard Olinsky (“Olinsky”), did not keep
contemporaneous time records prior to August 28, 2014. (Id. at ¶ 10). According to Olinsky, the
only time that was recorded contemporaneously was 2.6 hours of attorney time and 3.3 hours of
paralegal time, for a total of $838.56.1 (Id.).
In opposition, defendant does not contest Dyer’s prevailing party status or the
billing rates, but asserts that Dyer’s motion should be denied to the extent she seeks to recover an
award for services performed prior to August 28, 2014, when Dyer’s counsel’s firm began
keeping contemporaneous time records. (Docket # 21 at 4). Several courts within this Circuit
have denied attorney’s fees to this firm for time billed prior to August 28, 2014, but have
determined that time billed after that date at the same hourly rates as requested here is
compensable because the firm kept contemporaneous time records after that date. See Casul v.
Colvin, 2016 WL 6072389, *1-2 (N.D.N.Y. 2016) (“the [c]ourt concludes that time billed for this
case on and after August 28, 2014, is compensable”); Williams v. Colvin, 2015 WL 9275682,
*1-2 (S.D.N.Y. 2015) (same); Jones v. Colvin, 2015 WL 6801830, *2-3 (W.D.N.Y. 2015)
(same); Durso v. Colvin, 2015 WL 5684039, *2-3 (D. Conn. 2015) (same); Melendez v. Colvin,
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The government appears to suggest that Olinsky has not represented that the paralegal time recorded after
August 28, 2014 was recorded contemporaneously. (Docket # 21 at 4). I interpret his submissions to represent that
both attorney and paralegal time records were kept contemporaneously after August 28, 2014. (See Docket ## 20 at
¶ 10; 23 at 1).

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2015 WL 9659977, *2 (S.D.N.Y. 2015) (same), report and recommendation adopted, 2016 WL
79990 (S.D.N.Y. 2016); Stroud v. Comm’r of Soc. Sec. Admin., 2015 WL 2114578, *5
(S.D.N.Y.) (same; awarding fees at hourly rate of $192.29), report and recommendation adopted
as modified, 2015 WL 2137697 (S.D.N.Y. 2015). Accordingly, I conclude that time billed for
this case on and after August 28, 2014, is compensable. The award includes 2.6 hours of
attorney time and 3.3 hours of paralegal time, for a total of $838.56. (Docket # 20 at ¶ 10). I
conclude that this amount is reasonable. Finally, there was no objection to the request for costs
of $14.43. That request is therefore granted.
For the reasons set forth above, Dyer’s motion for attorney’s fees (Docket # 20) is
GRANTED in PART and DENIED in PART. The Court determines that the fee award to
Dyer’s counsel under the EAJA should be as follows: (1) attorney’s fees in the amount of
$508.56 (2.6 hours at $195.60 per hour), (2) paralegal’s fees in the amount of $330.00 (3.3 hours
at $100 per hour), and (3) costs in the amount of $14.43, for a total award of $852.99. The
Commissioner is ordered to pay Dyer $852.99, subject to any outstanding federal debts, and to
mail the award to Dyer’s attorney within sixty (60) days of the date of entry of this Decision and
Order.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
October 28, 2016

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