Bermontiz-Hernandez v. Commissioner of Social Security

Filing 31

OPINION AND ORDER granting in part and denying in part 29 Motion for Attorney's Fees. Signed by US Magistrate Judge Marcos E. Lopez on 4/26/2013. (GDR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

ANA BERMONTIZ-HERNÁNDEZ,
Plaintiff,
v.

CIVIL NO.: 11-1963 (MEL)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

OPINION AND ORDER
On September 30, 2011, plaintiff Ana Bermontiz-Hernández (“plaintiff”) filed a
complaint against defendant Commissioner of Social Security (“defendant” or “Commissioner”),
alleging that the final decision of the Commissioner was not based on substantial evidence.
(D.E. 1). This court remanded the case for further proceedings on May 31, 2012. (D.E. 27).
Pending before the court is plaintiff’s motion requesting attorney’s fees (D.E. 29), filed on
March 23, 2013, pursuant to Section 204(a) of the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412. Defendant has submitted a memorandum in partial opposition to this motion.
(D.E. 30). For the reasons stated herein, plaintiff’s motion requesting attorney’s fees is granted
in part and denied in part.
The EAJA provides that the fees awarded to a prevailing party against the United States
must be reasonable. 28 U.S.C. § 2412(d)(2)(A). Once fees are deemed appropriate, the court
shall “determine the number of hours actually spent, and then subtract from that figure hours
which were duplicative, unproductive, excessive, or otherwise unnecessary.”

Rodríguez v.

Puerto Rico, 764 F. Supp. 2d 338, 343 (D.P.R. 2011) (citing Grendel’s Den, Inc. v. Larkin, 749

F.2d 945, 950 (1st Cir. 1984)). Defendant does not object to plaintiff’s right to recover the fees,
but argues that the requested amount, $3,294.12, should be reduced by $181.36, because of
unnecessary and non-compensable expenditures of time. (D.E. 30).
Defendant first objects to plaintiff’s billing 10 minutes for requesting medical evidence,
stating that any medical record would be irrelevant since there was already a finding of
disability, and even if it had been appropriate it is an administrative task that a paralegal or
secretary could have performed. (D.E. 30, at 2). While the government is correct in stating that
there was already a finding of disability, it was only within an onset date of September 20, 2007.
(D.E. 27, at 1). Therefore, it would be reasonable to obtain additional medical evidence to
support plaintiff’s contention that the alleged onset date was April 7, 2004. Id. Generally,
“clerical or secretarial tasks ought not to be billed at lawyers’ rates, even if a lawyer performs
them.” Lipsett v. Blanco, 975 F.2d 934, 940 (1st Cir. 1992). Rather, “[t]he hours … should be
compensated at a less extravagant rate.” Id. Therefore, the fees for this entry will be prorated by
one-half ($13.30 rather than $26.59). See, e.g., Rodríguez-García v. Municipality of Caguas,
787 F. Supp. 2d 135, 144-45 (D.P.R. 2011); Guillemard-Ginorio v. Contreras, 603 F. Supp. 2d
301, 322 (D.P.R. 2009).
Defendant also contends that the 58 minutes billed for travel time to meet with a medical
advisor on September 26, 2012, does not proceed. Defendant argues that it was actually the
medical advisor who made the personal visit to counsel’s office, thus the doctor’s travel time is
not compensable as attorney fees under the EAJA. The EAJA broadly allows for “reasonable
expenses”

which

are

“necessary

for

the

preparation

of

the

party’s

case”

28 U.S.C. § 2412(d)(2)(A), such as reasonable travel time. “[T]he EAJA provides for … all
expenses which are routinely billed to a client—such as telephone, reasonable travel, postage,

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and computerized research expenses—as long as they are incurred in connection with the case
before the Court.” United States v. Cacho-Bonilla, 206 F. Supp. 2d 204, 210 (D.P.R. 2002); see
also United States v. One Rural Lot, 770 F. Supp. 66, 71 (D.P.R. 1991); Ramos-Sánchez, Civ.
No. 03-1454 (DRD/ADC), D.E. 21, at 4; Dubois v. U.S. Dept. of Agric., CIV.A. 95-50-B, 1998
WL 34007445 (D.N.H. July 17, 1998) (holding travel expenses to be covered by EAJA, unless
they “are more akin to items included in firm [overhead]”). “The limitation on the amount and
nature of such expenses is that they must be ‘necessary to the preparation of the [prevailing]
party’s case.’” Jean v. Nelson, 863 F.2d 759, 778 (11th Cir. 1988), aff’d sub nom. Comm’r,
I.N.S. v. Jean, 496 U.S. 154 (1990). In the case at bar, however, it was the medical advisor, not
the attorney, who traveled for the consultation.

Although an expert witness’s “reasonable

expenses” are expressly covered by EAJA, 28 U.S.C. § 2412(d)(2)(A), a medical advisor is not
technically the same as an expert witness, despite some overlap in their roles. Request for
$154.77 in travel expenses is denied.
For the foregoing reasons, plaintiff’s motion requesting attorney’s fees (D.E. 29) is
GRANTED IN PART and DENIED IN PART. Plaintiff’s proposed attorney’s fees and costs
are awarded to plaintiff with a reduction of $168.06, for a total of $3,126.06.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 26th day of April, 2013.
s/Marcos E. López
U.S. Magistrate Judge

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