Lynch v. Commissioner of Social Security

Filing 32

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 29 Report and Recommendations re: 25 Motion for Attorney Fees, filed by Jeffrey Howard Lynch. The Court grants in part and denies in part 25 Motion for Attorney Fees; overrules 30 objections ; and AWARDS Lynch 18.5 hours of attorney's fees at a rate of 182.75 and costs of 94.42, for a total of 3,475.30. Signed by District Judge Irene M. Keeley on 5/31/2013. (kd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

JEFFREY HOWARD LYNCH,
Plaintiff,

v.

CIVIL ACTION NO. 1:10cv210
(Judge Keeley)

MICHAEL ASTRUE, COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION/OPINION
Pending before the Court is the Magistrate Judge’s Report and
Recommendations (“R&R”) concerning the plaintiff Jeffrey Howard
Lynch’s (“Lynch”) motion for attorney’s fees pursuant to the Equal
Access to Justice Act (the “EAJA”), 28 U.S.C. § 2412. (Dkt. No.
25). For the following reasons, the Court ADOPTS the Magistrate
Judge’s Report and Recommendation in its entirety.
I.
On March 30, 2012, the Court adopted Magistrate Judge John
Kaull’s R&R concerning Lynch’s Social Security appeal. (Dkt. No.
23). Accordingly, the Court remanded the action to the Social
Security Commissioner for further proceedings pursuant to the
Fourth Sentence of 42 U.S.C. § 405(g). Id. The Court also denied
three motions filed by Lynch in which he sought to bring certain

LYNCH V. ASTRUE

1:10CV210

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 29]
medical

records

considered

by

to

the

the

Court’s

attention

administrative

law

that

judge

in

had

not

the

been

original

proceeding. (See Dkt. Nos. 12, 16 and 18). On April 25, 2012, Lynch
moved for an award of attorney’s fees pursuant to the Equal Access
to Justice Act, 28 U.S.C. § 2412. (Dkt. No. 25). The defendant,
Michael

Astrue,

Commissioner

of

Social

Security

(“the

Commissioner”) responded on May 8, 2012. (Dkt. No. 26). After Lynch
replied (dkt. no. 27), the Court referred the matter to Magistrate
Judge John Kaull for a R&R. (Dkt. No. 28).
On September 17, 2012, Magistrate Judge issued the R&R, in
which he recommended that the Court grant in part and deny in part
Lynch’s motion because portions of the fees requested by Lynch were
“excessive and unreasonable.” (Dkt. No. 29 at 7). Lynch filed
timely objections to the R&R (dkt. no. 30), and Astrue responded as
well. (Dkt. No. 31). After a de novo review of the facts recounted
by the Magistrate Judge, and the law applied to those facts, the
Court

overrules

Lynch’s

objections

and

adopts

the

Magistrate

Judge’s R&R in its entirety.
II.
Four elements must be met in order to establish eligibility
for an award of an attorney's fee under the EAJA: (1) the claimant
is the prevailing party; (2) the government's position was not
substantially justified; (3) no special circumstances make the
2

LYNCH V. ASTRUE

1:10CV210

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 29]
award

unjust;

and

(4)

the

claimant

timely

filed

a

petition

supported by an itemized statement. 28 U.S.C. § 2412; Crawford v.
Sullivan, 935 F.2d 655, 656 (4th Cir. 1991). Nevertheless, even
when a plaintiff satisfies all four elements, a district court may
exercise its discretion and set a reasonable fee award where the
petition seeks recompense for “excessive, redundant, or otherwise
unnecessary”

billed

hours

and

expenses.

Id.

§

2412;

May

v.

Sullivan, 936 F.2d 177, 177 (4th Cir. 1991) (citing Pierce v.
Underwood, 487 U.S. 552, 571 (1988)).
Here, although the Magistrate Judge concluded that Lynch had
satisfied all four elements necessary for an award of an attorney’s
fee under § 2412, he found that the amount sought by Lynch was
unreasonable. He based this finding on the fact that the missteps
of Lynch’s previous counsel, i.e., the failure to put all of
Lynch’s

medical

records

before

the

administrative

law

judge

(“ALJ”), and not any “unreasonable behavior” on the part of the
government, had necessitated additional work. See Pullen v. Brown,
820 F.2d 105, 107 (4th Cir. 1987) (“The [EAJA] aims to penalize
unreasonable
impairing

behavior

the

vigor

position.”)(abrogated

on

the

and
on

part

of

the

flexibility
other

government
of

grounds).

its

without

litigating

Accordingly,

the

Magistrate Judge deducted those hours related to that issue and
recommended an award of $2,832.63.
3

LYNCH V. ASTRUE

1:10CV210

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 29]
The Magistrate Judge also concluded that Lynch’s request for
compensation for 4.6 hours spent litigating the instant fee dispute
was unreasonable, and reduced that award by 1.6 hours worth of
fees, or to $548.25. (Dkt. No. 29 at 9). While the Magistrate Judge
acknowledged

that

Lynch

had

to

litigate

both

the

issue

of

substantial justification, see Crawford, 935 F.2d at 656, and the
amount of hours claimed, he concluded that those arguments were not
novel and thus not so time intensive as counsel claimed. Id.
Finally, the Magistrate Judge determined that Lynch was not
entitled to expenses associated with the issue of new records
because the Court ultimately had denied his motion to supplement
the record with those documents and did not consider them in its
decision. Id. at 9. Accordingly, the Magistrate Judge reduced the
expense amount sought by half, to $94.42. In all, the Magistrate
Judge recommended a total award of $3,475.30. Id. at 10.
In sum, the Magistrate Judge concluded that, while current
counsel has represented Lynch diligently, prior counsel’s omission
of certain medical records from the administrative proceeding (see
dkt. no. 23 at 31), which had necessitated the filing of three
motions seeking consideration of additional medical records (see
dkt. nos. 12, 16 and 18), was not attributable to “unreasonable
behavior”

on

the

part

of

the

Government,

and

thus

is

not

compensable under the EAJA. While Lynch objects that the fault for
4

LYNCH V. ASTRUE

1:10CV210

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 29]
that omission lies with the ALJ, and not prior counsel, that
argument is no more compelling now than it was when made earlier in
this matter. Compare (Dkt. No. 12 at 8) (arguing that the ALJ
breached duty to develop the record) with (Dkt. No. 23 at 31)
(explaining that Lynch’s own counsel failed to notice and correct
obvious omissions from the record). Notably, in deciding to remand
the case to the Commissioner, the Court never relied on the
additional records Lynch sought to put before it. Consequently, the
Court concurs with the Magistrate Judge’s conclusion that fees
associated with those records are unnecessary and therefore not
recoverable under the EAJA.
Finally, Lynch objects that the Magistrate Judge’s reduction
of fees associated with the instant motion is unreasonable because,
had the Government been willing to stipulate to a fee award, he
would not have had to litigate the issue, thereby reducing the fee
award he now seeks. Were the Court to credit this argument, it
would

severely

limit

the

Government’s

ability

to

defend

its

interests in future actions under the EAJA. Moreover, as observed
by the Commissioner, the facts of this case do not bear out Lynch’s
assertion that he repeatedly attempted to settle the issue of fees.
Only once, on November 11, 2011, did Lynch explicitly make a
settlement offer regarding EAJA fees. (Dkt. No. 30-1 at 1). In
short, the Government’s refusal to accede to Lynch’s settlement
5

LYNCH V. ASTRUE

1:10CV210

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 29]
demand does not automatically render Lynch’s ultimate fee request
reasonable.
III.
For the reasons stated, the Court:
1)

OVERRULES Lynch’s objections (dkt. no. 30);

2)

ADOPTS the R&R in its entirety (dkt. no. 29);

3)

DENIES IN PART and GRANTS IN PART Lynch’s Motion for
Attorney’s Fees (dkt. no. 25); and

4)

AWARDS Lynch 18.5 hours of attorney’s fees at a rate of
$182.75 and costs of $94.42, for a total of $3,475.30.

The Court directs the Clerk of the Court to transmit copies of this
order to counsel of record.
Dated: May 31, 2013.

/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

6