Tillack v. Colvin

Filing 25

DECISION AND ORDER. Plaintiff's Motion for Attorney Fees 18 is GRANTED. Counsel is awarded $8,757.95 in attorney fees, $581.28 for the reply on this motion, and $400.00 in costs for a total of $9,739.23. The Commissioner shall promptly pay $9,739.23 to Plaintiff's counsel. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 9/11/2017. (AFM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TERRANCE ARTHUR TILLACK,
Plaintiff,
Case # 15-CV-6306-FPG
v.
DECISION AND ORDER
NANCY A. BERRYHILL,1
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.

INTRODUCTION
On October 12, 2016, the Court granted Plaintiff’s Motion for Judgment on the Pleadings
and remanded this case to the Acting Commissioner of Social Security for further administrative
proceedings. ECF No. 1. On October 14, 2016, the Clerk of Court entered Judgment in Plaintiff’s
favor. ECF No. 17. On January 12, 2017, Plaintiff applied for $8,757.95 in attorney fees and
$400.00 in costs for 45.2 hours of work pursuant to the Equal Access to Justice Act, 28 U.S.C. §
2412 (“EAJA”). ECF No. 18. The Commissioner opposes Plaintiff’s motion and argues that the
hours expended on this case are “excessive and unreasonable.” ECF No. 23 at 2. Plaintiff also
requests an additional $1,160.76 for the time he spent replying to the Commissioner’s opposition
papers. ECF No. 24 at 6-7. For the reasons that follow, Plaintiff’s motion (ECF No. 18) is
GRANTED.
DISCUSSION
Pursuant to EAJA, a prevailing party in a Social Security benefits case may be awarded
fees payable by the United States if the Government’s position in the litigation was not

1

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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“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).
“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.”

Mitchell v. Berryhill, No. 1:14-CV-00418 (MAT), 2017 WL 1047360, at *2

(W.D.N.Y. Mar. 17, 2017) (quotation marks and citation omitted). 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). Attorney fees above this amount “will be awarded where the facts of the
specific case warrant such an award.” Id. (citations omitted). “Relevant factors to weigh include
the size of the administrative record, the complexity of the factual and legal issues involved,
counsel’s experience, and whether counsel represented the claimant during the administrative
proceedings.” Id. (citation omitted). “[W]hen a case does not rais[e] any extraordinarily difficult
or complex legal or factual issues, courts have determined that the hours spent litigating it should

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not have exceeded the guideline range.” Rivera v. Astrue, No. 07-CV-3129, 2009 WL 1351044,
at *1 (E.D.N.Y. May 13, 2009) (quotation marks and citation omitted).
Here, the sole issue is whether the fee sought is “reasonable.” ECF No. 11 at 2-7.
Specifically, the Commissioner asserts that the hours expended in this case are excessive and
unreasonable because this case was not complex. ECF No. 23 at 5-8.
The administrative transcript in this case was 1,038 pages, which is larger than what this
Court typically sees in a Social Security case.2 Although the Commissioner points out that the
administrative transcript contained duplicate records, the Court agrees with Plaintiff’s counsel that
he was still required to examine the transcript thoroughly to determine what was relevant and what
was duplicative.
Although Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 10) did not present
complex issues,3 Plaintiff’s memorandum of law was 40 pages long and thoroughly recited the
facts and discussed the legal arguments. ECF No. 10. Plaintiff also submitted a detailed 10-page
reply brief (ECF No. 15) rebutting the arguments made in the Commissioner’s motion.
Additionally, the procedural history of this case is longer and more complex than the
average Social Security case. Plaintiff testified at a hearing in 2013 that resulted in an unfavorable
decision that the Appeals Council vacated and remanded. Plaintiff testified at a second hearing in
2014 that resulted in another unfavorable decision and ultimately led to the appeal before this
Court.

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Courts in other districts have also noted that a Social Security transcript around 1,000 pages is above average.
See, e.g., Mandrell v. Astrue, No. 06-cv-612-JPG, 2008 WL 2704894, at *3 (S.D. Ill. July 9, 2008) (describing an 820page record as “larger than average”); Ubel v. Colvin, No. 13-875 (JRT/JJG), 2014 WL 2009051, at *2 (D. Minn. May
16, 2014) (describing an 879-page record as “a little longer than average”); Elstun v. Comm’r of Soc. Sec., No. 6:12cv-01811-MA, 2014 WL 667587, at *3 (D. Or. Feb. 20, 2014) (describing a 1,208-page record as “above average, but
not to an extraordinary extent”).
3
Plaintiff argued that remand was required because: (1) the ALJ’s residual functional capacity assessment was
not supported by substantial evidence due to the ALJ’s failure to develop the record; (2) the ALJ improperly weighed
the opinion evidence; and (3) the ALJ’s credibility assessment was improper. ECF No. 10-1 at 19-40.

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Counsel’s request to be compensated for 45.2 hours of work is slightly above the standard
20 to 40 hours, but it is not excessive given the long transcript and thorough briefing that occurred
in this case. The Court has reviewed counsel’s sworn declaration that sets forth the time he spent
representing Plaintiff and finds that his request is reasonable. See Szefler v. Colvin, 13-CV-1074,
2017 WL 372050, at *2 (W.D.N.Y. Jan. 26, 2017) (awarding EAJA fees for 46 hours of attorney
time); Banas v. Colvin, No. 1:13-CV-01066 (MAT), 2016 WL 6805076, at *1-2 (W.D.N.Y. Nov.
16, 2016) (awarding EAJA fees for 48.5 hours of attorney time); Scott v. Astrue, 474 F. Supp. 2d
465, 467 (W.D.N.Y. 2007) (awarding EAJA fees for 51 hours of attorney time).

The

Commissioner also objects to counsel’s time entries for administrative and clerical tasks, which
add up to approximately one hour. 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.
Plaintiff’s counsel asserts that he should be awarded an additional six hours in attorney
fees because he had to reply to the Commissioner’s opposition to his motion and “will also be
required to prepare for and attend oral argument.” ECF No. 24 at 6-7. Given counsel’s success
on the attorney fee motion, the Court finds that he is entitled to additional compensation. See, e.g.,
Barbour, 993 F. Supp. 2d at 292 (finding that 4.3 hours spent on an EAJA reply brief was
reasonable); Pereia v. Astrue, 739 F. Supp. 2d 267, 272 (E.D.N.Y. 2010) (finding that 6.2 hours
spent on an EAJA reply brief was reasonable). However, the Court opts to award counsel three
additional hours instead of the six that he requested. Counsel asserted that the reply brief plus
preparation for and attending oral argument “has and will result in an additional 6.0 hours of time.”
ECF No. 24 at 6. Counsel submitted a thorough seven-page reply brief, but the Court did not

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conduct oral argument. Thus, Plaintiff’s counsel is entitled to an additional $581.28 in attorney
fees (three hours at $193.76 per hour4).
CONCLUSION
Plaintiff’s Motion for Attorney Fees (ECF No. 18) is GRANTED. Counsel is awarded
$8,757.95 in attorney fees, $581.28 for the reply on this motion, and $400.00 in costs for a total of
$9,739.23. The Commissioner shall promptly pay $9,739.23 to Plaintiff’s counsel.

IT IS SO ORDERED.
Dated: September 10, 2017
Rochester, New York

______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

4

There is no dispute as to the appropriate hourly rate in this case, which Plaintiff’s counsel calculated pursuant
to EAJA after adjustment for inflation. ECF No. 18-1 at 4; ECF No. 23 at 5; see 28 U.S.C. § 2412(d)(2)(A).

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