Rivera-Quintana v. Commissioner of Social Security

Filing 15

ORDER. GRANTED in part and DENIED in part 10 Motion for Attorney Fees. Signed by Judge Salvador E Casellas on 3/11/2010. (LB)

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I N THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO M A G A L Y RIVERA-QUINTANA Plaintiff v. C O M M IS S IO N E R OF SOCIAL SECURITY D e f e n d a n ts C iv il No. 06-1791 (SEC)

OPINION AND ORDER P e n d in g before this Court is Plaintiff Magaly Rivera-Quintana's ("Plaintiff") motion for a tto rn e y's fees pursuant to the Equal Access to Justice Act ("EAJA"), Defendant Commissioner o f Social Security's ("Commissioner") opposition thereto (Docket # 11), and Plaintiff's reply (D o c k e t # 12). Upon reviewing the filings, and the applicable law, Plaintiff's motion is G R A N T E D in part and DENIED in part. Factual and Procedural Background O n August 15, 2006, Plaintiff filed a social security complaint under 42 U.S.C. 404 (g), a lle g in g that the Commissioner erred in denying her request for disability benefits. Docket # 1. O n October 13, 2006, the Commissioner filed its answer to the complaint, and shortly thereafter, m o v e d to remand the case "to an Administrative Law Judge (ALJ) for further proceedings...," u n d e r sentence four of 42 U.S.C. §405(g).1 The Commissioner further informed that on remand, th e ALJ would be instructed to "1) further evaluate whether Plaintiff's condition met or m e d ic a lly equaled Listing Section 3.03B; 2) evaluate the medical opinions in the record and

Sentence four of 42 U.S.C. §405(g) grants the courts the power "to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying or reversing the decision of the [Commissioner], with or without remanding the cause for rehearing." See Shalala v. Schaefer, 509 U.S. 292, 296 (1993).

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s ta te what weight each opinion is entitled and 3) re-evaluate Plaintiff's residual functional c a p a c ity." Docket # 7. Since Plaintiff did not oppose, this Court granted the Commissioner's re q u e st, and Judgment of dismissal was entered on December 27, 2006. Docket # 9. On March 23, 2007, Plaintiff moved for attorney's fees under Section 204 of the Equal A c c e s s to Justice Act ("AEJA"), 28 U.S.C. § 2412. According to Plaintiff, since the present case w a s remanded pursuant to sentence four of 42 U.S.C. §405(g), she is a "prevailing party" under S e c tio n 204, and Shalala v. Schaefer, 509 U.S. 292, 296 (1993). She further provided an ite m iz e d statement stating the actual time expended and the rate at which fees were computed b y her attorney. Docket # 10-2. The Commissioner objects to the computation of attorney's fees a lle g in g they are unreasonable and excessive. Docket # 11. Standard of Review T h e EAJA "is a fee-shifting statute that creates a right to attorney's fees in appropriate c iv il actions against the United States...[i]t's purpose is to ensure that individuals are not d e te rre d from seeking review of unjustified governmental action." Perkins v. Astrue, 568 F. S u p p . 2d 102, 103 (D. Mass. 2008). Under Section 204 of the EAJA, "...a court may award re a s o n a b le fees and expenses of attorneys ... to the prevailing party in any civil action brought b y or against the United States or any agency or any official of the United States acting in his o r her official capacity in any court having jurisdiction of such action." 28 U.S.C. § 2412 (b). It further provides, in relevant part, that "...a court shall award to a prevailing party other than th e United States fees and other expenses . . . incurred by that party in any civil action . . ., in c lu d in g proceedings for judicial review of agency action, brought by or against the United S ta te s in any court having jurisdiction of that action, unless the court finds that the position of th e United States was substantially justified or that special circumstances make an award

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u n j u s t . " Trinidad v. Secretary of HHS, 935 F.2d 13, 15 (1st Cir. 1991) (citing 28 U.S.C. § 2 4 1 2 (d )(1 )(A )). Once a claimant achieves "prevailing party" status, "the government can defeat a fee a w a rd only by demonstrating that its position was `substantially justified' or that `special c irc u m s ta n c e s ' make an award unjust." Trinidad, 935 F.2d at 15 (citations omitted). "If the g o v e rn m e n t can make neither showing, an award of fees to a prevailing party is `mandatory.'" Id . (citations omitted). T h e claimant must submit a fee application to the court "within thirty days of final ju d g m e n t in the action,"2 accompanied by an itemized statement documenting the time e x p e n d e d and the rate at which fees are computed.3 28 U.S.C. § 2412 (d)(1)(B). Subsection (d )(1 )(B ) further provides that "[t]he court, in its discretion, may reduce the amount to be a w a rd e d pursuant to this subsection, or deny an award, to the extent that the prevailing party d u r i n g the course of the proceedings engaged in conduct which unduly and unreasonably p ro tra c te d the final resolution of the matter in controversy." Applicable Law and Analysis T h e Commissioner does not contest the timeliness of Plaintiff's application, nor contend e ith e r that its position was substantially justified or that an award would be unjust because of s p e c ia l circumstances. Instead he posits that the charges are excessive, and should be reduced a c c o rd in g ly. Docket # 11. According to the Commissioner, Plaintiff's counsel's arguments p la ye d no role in the decision to remand the case. Docket # 11, p. 3. Specifically, he contends

A sentence four remand is treated as a final judgment for purposes of filing attorney fee applications under EAJA. Santiago-Aybar v. Comm'r of Soc. Sec., 545 F. Supp. 2d 231, 234 (D.P.R. 2008). The claimant shall also "allege that the position of the United States was not substantially justified," and Plaintiff here acted accordingly.
3

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th a t at the time the request for remand was filed, Plaintiff's counsel had not set forth any a rg u m e n ts regarding the ALJ's decision's alleged lack of substantial evidence. Id. at 4. The C o m m iss io n e r also avers that certain tasks by Plaintiff's counsel are unnecessary and u n ju stif ie d , and thus should be disallowed by this Court. In her reply, Plaintiff asserts that the re q u e ste d attorney's fees are reasonable and properly correlate to the time expended in the p re p a ra tio n and litigation of the case. As previously stated, Section 204 allows for "reasonable" attorney's fees. On this front, th e EAJA further provides that "...attorney fees shall not be awarded in excess of $ 125 per hour u n le ss the court determines that an increase in the cost of living or a special factor, such as the lim ite d availability of qualified attorneys for the proceedings involved, justifies a higher fee..." 2 8 U.S.C. § 2414 (d)(2)(A)(ii). In the instant case, Plaintiff's request for attorney's fees is c a lc u la te d at the rate of $ 125.00 per hour,4 reflecting the above-mentioned statutory maximum. T h e First Circuit has held that "[w]hen fee-shifting is in prospect, `district judges have g re a t discretion in deciding what claimed legal services should be compensated.'" United States v . One Star Class Sloop Sailboat, 546 F.3d 26, 37 (1st Cir. Mass. 2008) (citing Brewster v. D u k a k is , 3 F.3d 488, 492 (1st Cir. 1993). Similarly, when dealing with a fee-shifting statute, " c o u rts typically ascertain reasonable attorneys' fees by means of the lodestar method.'" United S ta te s v. One Star Class Sloop Sailboat, 546 F.3d 26, 38 (1st Cir. Mass. 2008) (citing Hensley v . Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933 (1983). This entails "multiplying the number o f hours productively spent by a reasonable hourly rate." Id. (citing Torres-Rivera v. O 'N e ill-C a n c e l, 524 F.3d 331, 336 (1st Cir. 2008). After determining the time reasonably

Plaintiff does not add the cost of living increases since the 1996 amendment rate. Thus the maximum hourly rate could be higher under certain circumstances.

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e x p e n d e d by the prevailing party's counsel, the court must focus on the rates to be applied to th o s e hours. O'Neill-Cancel, 524 F.3d at 336-337. R e a s o n a b le hourly rates "vary depending on the nature of the work, the locality in which it is performed, the qualifications of the lawyers, and other criteria." One Star Class, 546 F.3d a t 38. Thus "the prevailing market rates in the relevant community," are an adequate starting p o in t. Id. at 40. On this front, "the rate that private counsel actually charges for her services, w h ile not conclusive, is a reliable indicium of market value." Id. at 40. Therefore, court may use " c o u n s e l's standard rate, or the prevailing market rate in the forum, or a reasonable rate in b e tw e e n ." Id. at 41. After "the basic lodestar is calculated, the court may adjust it, up or down, to reflect other c o n s id e ra tio n s , such as the results obtained," Id. at 38. (citing Coutin v. Young & Rubicam P.R., In c ., 124 F.3d 331, 337, n. 3 (1st Cir. 1997), and "the time and labor actually required for the e f f ic a c io u s handling of the matter." O'Neill-Cancel, 524 F.3d at 336. The court may also adjust the award considering: (1) the time and labor required; (2) the novelty and difficulty of th e questions; (3) the skill requisite to perform the legal services properly; (4) the preclusion of o th e r employment by the attorney(s) due to acceptance of the case; (5) the customary fee; (6) th e nature of the fee (fixed or contingent); (7) the time limitations imposed by the client or the c irc u m s ta n c e s ; (8) the amount involved and the results obtained; (9) the experience, reputation, a n d ability of the attorney(s); (10) the "undesirability" of the case; (11) the nature and length o f the professional relationship with the client; and (12) the size of awards in similar cases. G u ille m a rd -G in o rio v. Contreras, 603 F. Supp. 2d 301, 310 (D.P.R. 2009) (citations omitted). F u rth e rm o r e , in analyzing the "number of hours productively spent, the court should `e lim in a te time that was unreasonably, unnecessarily, or inefficiently devoted to the case' and m a y, under appropriate circumstances, `disallow time spent in litigating failed claims.'" One

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S ta r Class, 546 F.3d at 38 (citations omitted); see also Torres-Rivera v. O'Neill-Cancel, 524 F .3 d 331, 336 (1st Cir. 2008). Also, when a prevailing party achieves "only limited success, the tria l court may reduce the fee request to an amount that reasonably reflects that circumstance." Id . at 39. Accordingly, a party may be entitled to recover fees for time productively spent, but n o t time invested in issues that are litigated profligately, unnecessarily, or without benefit to the p re v a ilin g party. Id. N o tw ith stan din g , courts may also reduce a prevailing party's requested fees e v e n if the party has succeeded on all or substantially all of his claims, by eliminating specific h o u rs or reduce the overall fee to account for the prevailing party's limited success. One Star C la s s, 546 F.3d at 39-40 (citing Hensley, 461 U.S. at 436-37); O'Neill-Cancel, 524 F.3d at 336. F u rth e r m o r e , "[t]here is no rigid prescription that must be followed in effecting such a re d u c tio n . Id. at 40. In order to receive the proper award of attorney fees, a prevailing party must submit with its motion evidence to support the number of hours and rates sought, including specific in f o rm a tio n about number of hours, dates, and the nature of the work performed, and show that th e rates being sought are comparable to those in the community. Guillemard-Ginorio, 603 F. S u p p . 2d at 317 (citing Hensley, 461 U.S. 424, 433 (1983)). The Supreme Court has held that " [ w ]h e re the documentation of hours is inadequate, the district court may reduce the award a c c o r d i n g l y. " C o n s id e rin g the foregoing, in determining whether the requested attorney's fees are re a s o n a b le , this Court must employ the lodestar method. In so doing, we first note that hourly ra te s depend on those prevailing in the community by lawyers with comparable skill, experience a n d reputation, as well as whether the time was invested in-court or out-of-court. G u ille m a rd -G in o rio , 603 F. Supp. 2d at 311-312 (citing Ciudadana v. Gracia-Morales, 359 F. S u p p .2 d 38, 45 (D.P.R. 2005) (finding rates of $ 200.00 an hour for out-of- court work and $

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2 2 5 .0 0 an hour in-court work justified); International College of Business and Technology, Inc., 3 5 6 F. Supp.2d 92, 96-97 (D.P.R. 2005) (finding rate of $ 190 and $ 125 to be appropriate); Top E n te rta in m e n t Corp. v. Torrejon, 349 F. Supp.2d 248, 253-255 (D.P.R. 2004) (finding hourly ra te of $ 125.00 reasonable); Anywhere, Inc. v. Romero, 344 F. Supp.2d 345, 348 (D.P.R. 2004) (f in d in g that an hourly rate of $ 250.00 for the more experienced attorney and of $ 150.00 for th e less experienced attorneys reasonable); Vieques Conservation and Historical Trust, Inc. v. M a rtin e z , 313 F.Supp.2d 40, 47 (D.P.R. 2004) (reducing attorney's hourly rate to $ 225 to e q u a te with local rates); Rodriguez-Sostre v. Municipio de Canovanas, 251 F. Supp.2d 1055, 1 0 5 8 (D.P.R. 2003) (awarding $ 225.00 to $ 250.00 for in-court time and $ 200.00 for o u t - o f -c o u rt time)). In its motion for attorney's fees, Plaintiff's counsel provides the hours, d a te s , and the nature of the work performed. He further notes that the EAJA provides a m a x im u m $125.00 hourly rate. In light of the foregoing, and the above-cited case law, this C o u rt finds that the $125 hourly fee is reasonable. Upon reviewing the record, this Court notes that present counsel's only court submission w a s the complaint, which is "boilerplate" in this type of case. See Trinidad, 935 F.2d at 18. As in Trinidad, the remaining time was expended on ministerial tasks, since counsel's work prior to the remand order entailed little if any substantive analysis, and there were no court a p p e a ra n c e s . Moreover, albeit Plaintiff is a "prevailing party" because of remand under sentence f o u r of 42 U.S.C. §405(g), the case was remanded solely based on the Commissioner's request, n o t Plaintiff's counsel's efforts aside from filing the appeal. Therefore, the time and labor a c tu a lly required for the efficacious handling of the matter was minimum. However, this Court a ls o notes that Plaintiff only requests for attorney's fees for 13 hours of rendered services, w h ic h is not excessive or unreasonable in this type of case. Based on the foregoing, this Court will reduce the fees awarded for the following item:

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8/22/2006

Study & Analysis of the prior decisions on the present case of the Commissioner and of all documents, reports and other medical evidence brought to the office so as to determine which areas needed clarification.

2.00 x $125.00 = $250.00

Reduced to 1.00 x $125.00 = $125.00

S p e c if ic a lly, we find that the amount of time invested in examining the Commissioner's p rio r decision, and accompanying documents is unreasonable, especially compared to Plaintiff's cou n s e l itemization of five hours for the study and analysis of the 400-page transcript. However, the rest of Plaintiff's counsel's services are reasonably calculated. As a result, Plaintiff's c o u n s e l is awarded $1,603.00 in attorney's fees. C o n c lu s io n B a s e d on the foregoing, Plaintiff's motion for attorney's fees is GRANTED in part and DENIED in part, and Plaintiff's counsel is awarded $1,603.00 in attorney's fees. IT IS SO ORDERED. In San Juan, Puerto Rico, this 11th day of March, 2010. S / Salvador E. Casellas S A L V A D O R E. CASELLAS U n ite d States District Judge