HOWELL v. ASTRUE

Filing 14

MEMORANDUM ORDER granting 12 Motion for Attorney Fees. Signed by Judge Terrence F. McVerry on 12/5/11. (mh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOYCE ANN HOWELL

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Plaintiff,
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v.
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MICHAEL J. ASTRUE,
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COMMISSIONER OF SOCIAL SECURITY, )
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Defendant.
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02: 10-cv-1302

MEMORANDUM OPINION AND ORDER OF COURT
Pending before the Court is PLAINTIFF’S MOTION FOR APPROVAL OF
ATTORNEY FEES AND IN THE ALTERNATIVE TO AWARD ANY APPROVED FEE
AGAINST THE U.S. GOVERNMENT PURSUANT TO 28 U.S.C. § 2412 (EAJA) (Document
No. 12). In support of the motion, Richard Urick, counsel for Plaintiff Joyce Ann Howell, has
submitted the Fee Agreement with his client, an Itemization of Services Rendered, an Affidavit
regarding his hourly billing rate, and an assignment by Howell to Urick of any EAJA award of
fees. Defendant filed a response in opposition to the motion (Document No. 13) and it is ripe for
disposition.

Factual and Procedural History
Howell brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c), for
judicial review of the final determination of the Commissioner of Social Security
(“Commissioner”) which denied her applications for supplemental security income (“SSI”) and
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disability insurance benefits (“DIB”) under Title II and Title XVI of the Social Security Act
(“Act”), 42 U.S.C. §§ 401-403; 1381-1383(f). The primary issue was whether the Administrative
Law Judge (“ALJ”) had properly considered Howell’s history of seizures. On June 28, 2011, after
a careful review of the entire record, the Court issued a Memorandum Opinion and Order which
found that the ALJ had failed to explain his rejection of evidence from two treating physicians,
Dr. Shetty and Dr. Carey, and had minimized the actual extent of Plaintiff’s seizure history.
Accordingly, the Court granted Howell’s motion for summary judgment; denied Defendant’s
motion for summary judgment; and remanded the case to the Commissioner for reconsideration,
rehearing, and/or further proceedings.
As the prevailing party at the District Court, Plaintiff’s counsel then filed the
pending fee petition for services rendered at the District Court level pursuant to 28 U.S.C. § 2412.
The Fee Agreement between Howell and Urick provided two alternative calculations: (1) a
contingent fee of 25% of past due benefits or $5,300, whichever is less; or (2) a contingent fee at
the rate of $135/hour for services rendered at the District Court level. Plaintiff seeks an award of
counsel fees at the District Court level of $3,753.00 plus costs of $350.00.
The government does not challenge the appropriateness of a fee award or the
hourly rate claimed by attorney Urick. The government merely contends that the hours claimed
for several of the tasks performed were excessive. The government submits that Plaintiff’s EAJA
fee award should be reduced from $3,753.00 to $2,875.50.

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Discussion
The entire amount of the controversy now at issue is $ 877.50. It is not a prudent
use of judicial resources to engage in an extensive analysis.
Suffice it to say that the Court has reviewed attorney Urick’s Itemization of
Services Rendered. The Court has also reviewed each of attorney Schollaert’s objections to the
hours claimed. The Court agrees with the government that the total hours should be 27.8, rather
than 29.5. However, the Court disagrees with all of the government’s specific objections. In
particular, the government’s second-guessing of the 19.5 hours spent to review the transcript and
prepare a brief in this “simple” case is entirely unpersuasive. There was an extensive medical
record, the government vigorously defended the ALJ’s decision -- and filed a twenty (20) page
brief – and Plaintiff’s brief was compelling and effective. The remainder of the government’s
objections are without substantive merit.

Conclusion
In accordance with the foregoing, PLAINTIFF’S MOTION FOR APPROVAL OF
ATTORNEY FEES AND IN THE ALTERNATIVE TO AWARD ANY APPROVED FEE
AGAINST THE U.S. GOVERNMENT PURSUANT TO 28 U.S.C. § 2412 (EAJA) (Document
No. 12) will be GRANTED.
An appropriate Order follows.

McVerry, J.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOYCE ANN HOWELL
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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02: 10-cv-1302

ORDER OF COURT
AND NOW, this 5th day of December, 2011, in accordance with the foregoing
Memorandum Opinion, it is hereby ORDERED, ADJUDGED, AND DECREED that:
1.

PLAINTIFF’S MOTION FOR APPROVAL OF ATTORNEY FEES AND IN
THE ALTERNATIVE TO AWARD ANY APPROVED FEE AGAINST THE
U.S. GOVERNMENT PURSUANT TO 28 U.S.C. § 2412 (EAJA) (Document
No. 12) is GRANTED.

2.

Defendant shall pay to Richard Urick, Esquire, counsel fees of $3,753.00 for
services performed at the District Court level, plus costs of $350.00, for a total
of $4,103.00.
BY THE COURT:

s/Terrence F. McVerry
United States District Court Judge

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cc:

Richard Urick
McMillen, Urick, Tocci, Fosse & Jones
2131 Brodhead Road
Aliquippa, PA 15001
Email: [e-mail]
Albert Schollaert
United States Attorney’s Office
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Email: [e-mail]

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