Opinion
CAUSE NO. 1:01-CV-399
November 13, 2002
MEMORANDUM OF DECISION AND ORDER
Before the Court is the Plaintiff's "Motion [for] Award of Attorney's Fees Pursuant to Equal Access to Justice Act[,] 28 U.S.C. § 2412" (Docket No. 22) and her motion to publish the Court's Memorandum of Decision and Order in this case (Docket No. 21), both filed on October 11, 2002. The defendant, Commissioner of Social Security ("Commissioner"), filed a response to the motion for attorney's fees on October 24, 2002, and the Plaintiff filed a reply on November 8, 2002. For the reasons stated below, the motion for attorney's fees will be GRANTED and the motion to publish will be GRANTED.
Jurisdiction of the undersigned Magistrate Judge is based on 28 U.S.C. § 636(c), all parties consenting.
I. PROCEDURAL BACKGROUND
On August 12, 2002, this Court entered a Memorandum of Decision and Order remanding the Commissioner's final decision for further administrative proceedings. In that order, we found that the Commissioner's final decision on the Administrative Law Judge's ("ALJ") Residual Functional Capacity ("RFC") assessment was not supported by substantial evidence, particularly in light of the requirements of Social Security Ruling ("SSR") 96-4p n. 2, that the ALJ improperly evaluated the medical opinions of the Plaintiff's two treating physicians, and that the ALJ's credibility determination was also not supported by substantial evidence.
The Plaintiff now seeks a total of $6,241.95 in attorney fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412.
The Plaintiff originally sought $5,870.15 in attorney's fees, but now seeks an additional $371.80 for time spent drafting the EAJA fee petition and reply brief. (Pl.'s Supp. M. for Award of Attorney's Fees; Supp. Pl.'s Attorney's Aff.)
II. THE MOTION FOR ATTORNEY'S FEES
Under the EAJA, "[e]xcept as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . . brought by or against the United States . . . unless the court finds that the position of the United States was substantially justified." 28 U.S.C. § 2412(d)(1)(A); see Commissioner, I.N.S. v. Jean, 496 U.S. 154, 155 (1990).
The Commissioner concedes that her position was not substantially justified, but argues that the attorney's fees sought by the Plaintiff are unreasonable, making a full award unjust, and should be reduced accordingly. Specifically, the Commissioner contends that plaintiff's counsel spent too much time researching, writing and rewriting an opening brief that only involved "routine" issues, and he likewise spent too much time on his reply brief.
In reply, the Plaintiff contends that the "theme" of the Commissioners's objection is that the number of pages briefed should equal the amount of time spent preparing the briefs. However, the Plaintiff argues that what is actually important here is the quality of her briefs, not how quickly they can be generated.
We begin our analysis by noting that there is no dispute that the $143.00 hourly rate sought by plaintiff's counsel is reasonable rate, and therefore, the focus will be on the number of hours claimed by plaintiff's counsel.
The fee applicant under the EAJA bears the burden of documenting the reasonableness of all time expenditures for which compensation is sought. See Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983). Thus, the Court should exclude all time that is excessive, duplicative, or inadequately documented. Id. Although the Commissioner appears to contend that counsel's representation in this matter exceeded diligence and actually became overkill, see Oklahoma Aerotronics v. United States, 943 F.2d 1344 (D.C. Cir. 1991) ("there is a point at which thorough and diligent litigation efforts become overkill"), we disagree and find the time counsel invested in the case to be reasonable.
Here, the Plaintiff only seeks payment for 41.05 hours spent securing her entitlement to social security benefits (plus the 2.6 hours spent preparing her EAJA petition and reply). Even a cursory survey of cases reveals that such a time expenditure is fairly routine for non-complex cases. See Culler v. Massanari, 2001 WL 1718033, *2-3 (D. Kan. Dec. 20, 2001) ("[t]he typical EAJA fee application in social security cases claims between thirty and forty hours.") (quoting Hutchison v. Chater, 1996 WL 699695, at *3 (D. Kan. Oct. 31, 1996)); Pribek v. Secretary, Department of Health and Human Services, 717 F. Supp. 73, 75-77 (W.D.N.Y. 1989) ("[f]orty hours . . . reflects, in this Court's experience, a reasonable expenditure of time on a case of this sort, which is unextraordinary in all respects") (citations omitted); Terry v. Bowen, 711 F. Supp. 526, 527 (D. Ariz. 1989) ("[37.5 hours] is not an inordinate amount of time, and in fact, falls right in line with one court's determination of an average. . . . `An interesting in-house survey performed by Chief Judge Carl Rubin of the Southern District of Ohio and encompassing seven years of data and found that the average number of hours asserted in the fee petition was 37.3.'") (quoting Rodriquez v. Bowen, 865 F.2d 739, 747 (6th Cir. 1989)); DiGennaro v. Bowen, 666 F. Supp. 426, 433 (E.D.N.Y. 1987) (holding that 45 hours were compensable under the EAJA in a social security disability case, and observing that "[i]n cases of this nature, compensated hours generally range from twenty to forty hours"); Hardy v. Callahan, 1997 WL 470355, *9 n. 10 (E.D. Tex. 1997) (awarding EAJA fees for 46.5 hours, and noting that "[t]he typical EAJA application in social security cases claims between thirty and forty hours," and concluding that "[t]his appears to be an appropriate average" for "relatively non-complex" social security cases) (citations omitted); Grey v. Chater, 1997 WL 12806, *1-*2 (S.D.N.Y. 1997) (citing cases supporting a "twenty to forty hour benchmark" for social security fee awards).
Nevertheless, we will consider the Commissioner's arguments on the merits. First, the Commissioner claims that the 7 hours plaintiff's counsel spent reviewing transcripts is excessive. In her reply, the Plaintiff contends that the time spent reviewing the record and taking notes is hardly unreasonable especially given the frequency with which the ALJ misstated the evidence. Indeed, in our Memorandum of Decision and Order, we detailed the numerous times that the ALJ misstated the record. (Memo. of Decision and Order at 22-24.) of those, most significant was the fact that the ALJ found that the Plaintiff's "presentation was not consistent with her complaints of pain, as she was reported to be cheerful," (Tr. at 17-18) (emphasis added) but even a minimal examination of the record revealed that the document he relied upon contained a typographical error and should have read "tearful." This error and others like it might not have been discovered but for counsel's careful review of the record. Thus, given the facts of this case, we believe the 7 hours spent reviewing the record is reasonable.
The Commissioner next argues that the 21 hours spent by counsel crafting 8 pages of "routine" argument is also unreasonable. Of course, as the Plaintiff points out, some of the issues in this case are actually quite novel. Specifically, one issue of some significance in this case was whether any of the Plaintiff's subjective complaints actually rise to the level of "medical signs," objective evidence under the regulations. This issue was based entirely on a footnote to SSR 96-4p, but few cases have ever discussed that ruling, and none for the proposition argued by the Plaintiff. Indeed, the Court agreed with the Plaintiff and held that the ALJ should have at least considered whether the Plaintiff's subjective complaints actually amounted to medical signs. Certainly this line of argumentation was unique, making a full award on fees justified.
Accordingly, because we conclude that the amount of time spent by plaintiff's counsel in this case was reasonable, we will grant the Plaintiff's motion for attorney's fees under the EAJA.
III. THE MOTION TO PUBLISH
The Plaintiff also requests that we publish our August 12, 2002, Memorandum of Decision and Order. Specifically, the Plaintiff contends that the Court's discussion of SSR 96-4p n. 2 deals with an issue of "great importance" for disability claimants alleging disorders based on pain, but which has received little (and possibly no) discussion in case law.
Indeed, because our own review reveals a virtual dearth of case law on the subject, we agree that publication would provide some guidance to the courts, claimants and their counsel in addressing relatively subjective conditions like the one at issue in this case.
Accordingly, we will grant the Plaintiff's motion to publish.
IV. CONCLUSION
For the foregoing reasons, the Plaintiff's motion for the award of attorney's fees under the EAJA is GRANTED in the amount of $6,241.95, and the Plaintiff's motion to publish the Court's August 12, 2002 Memorandum of Decision and Order is GRANTED.