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Monk v. Colvin

United States District Court, N.D. Indiana, Hammond Division

August 24, 2016

ELLIS MONK, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          PHILIP P. SIMON, CHIEF JUDGE

         Petitioner Ellis Monk seeks attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, for time spent appealing a denial of social security benefits. (DE 23.) The Commissioner argues that counsel billed an unreasonable amount of time for a relatively simple case and did not show he is entitled to an enhanced hourly rate of $190. The Commissioner further argues that legal assistant time must be reduced to time spent doing work traditionally handled by attorneys. For the reasons below, the petition is granted, and Monk is awarded attorney's fees in the amount of $7, 790.00.

         DISCUSSION

         Monk appealed to this Court from an Administrative Law Judge's denial of his claim for Supplemental Security Income in 2013. Monk argued that the ALJ committed numerous errors, including: (1) failing to explain how he weighed the opinions of a special education teacher who regularly interacted with Monk compared to the opinions of non-examining state agency consultants; (2) failing to account for functional limitations related to Monk's speech impediment; (3) failing to properly apply the regulatory special technique to ascertain the severity of the functionally limiting effects of Monk's autism; (4) failing to identify evidence supporting the limitations included in the ALJ's assessment of Monk's residual functional capacity; and (5) improperly assessing Monk's credibility. (DE 15 at 9-23.) Instead of fighting the appeal, the Commissioner joined Monk in filing an Agreed Motion for Remand that requested reversal of the ALJ's decision with remand for further consideration of the application. (DE 20.) I granted the motion and remanded the matter on May 5, 2016. (DE 21.)

         In the pending motion, Monk requests EAJA fees totaling $7, 315.00, comprised of 37.6 attorney hours at $190 per hour and 1.8 legal assistant hours at $95 per hour. (DE 23 at 4.) In his reply brief, Monk moved for an additional fee of $475.00 for 2.5 hours of attorney time spent on that brief. The total request is thus for $7, 790.00.

         Attorney's fees may be awarded if the government's prelitigation conduct or its litigation position lacked substantial justification. Cunningham v. Barnhart, 440 F.3d 862, 864 (7th Cir. 2006); Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir. 2004). The Commissioner concedes that Monk is entitled to recover attorney's fees but makes several arguments for reducing the number of attorney and paralegal hours entitled to compensation and the enhanced hourly rate proposed by Monk's attorneys.

         Total Hours Billed

         First, the Commissioner argues that it was unreasonable for Monk's attorneys to bill 37.6 hours because the record contains “less than 50 pages of substantive records” and the issues in the case are routine. (DE 24 at 2-3.) In the Commissioner's view, it was excessive for Monk's attorneys to spend 9.1 hours reviewing the record and drafting a statement of facts and 2.3 hours revising and citechecking the opening brief, and they should have been able to prepare the entire case in 29.6 hours or less.

         I disagree. To begin with, a 400-page administrative record is not short. See Bryan v. Astrue, No. 08-c-5472, 2010 WL 438384, *2 (N.D. Ill. 2010) (characterizing a 403-page administrative record as “rather large”); Palmer v. Barnhart, 227 F.Supp.2d 975, 978 (N.D. Ill. 2002) (describing a 459-page record as “rather voluminous”). In addition, while some documents in the administrative record clearly had no real bearing on the appeal, Monk's attorneys had to sift through everything to separate the wheat from the chaff. In addition and as documented in the itemized time sheet, Monk's legal team had to thoroughly review not just his medical records, but also more than 50 pages of school evaluations and testing results, the ALJ's 20-page opinion, and the 50 pages of hearing transcripts. (See DE 23-3 at 1.)

         Second, although the Commissioner asserts that the issues raised in this case were routine and counsel could have reviewed the record and drafted Monk's opening brief in significantly less time, she has identified nothing in the brief that could have been eliminated, and I see nothing superfluous on the itemized time report or in Monk's opening brief. In addition, and as has been noted by numerous courts in this circuit, “most social security cases do not present particularly complex legal issues, but that does not mean that providing a thorough exegesis of the record, pointing out various pieces of evidence that the administrative law judge overlooked or misrepresented, and explaining why those oversights are material to the outcome does not take time.” Martinez v. Astrue, No. 2:10-cv-370, 2012 WL 1563907, at *6 (N.D. Ind. Apr. 30, 2012) (internal quotation marks and citation omitted). Monk's brief was 25 pages long and made five different arguments for remand, any one of which could have resulted-and did result-in remand. Further, the 37.6 hours that Monk's attorneys spent reviewing the record and drafting the opening brief is on par with the time that other courts in this circuit have found reasonably expended during the initial stage of a social security appeal. See, e.g., Garcia v. Colvin, No. 1:11-cv-165, 2013 WL 1343662, at *2 (N.D. Ind. Apr. 3, 2013) (awarding fees for 37.75 hours spent on the record, researching, and writing a 25-page opening brief); Burke v. Astrue, No. 08-c-50136, 2010 WL 1337461, at *3 (N.D. Ill. Mar.31, 2010) (awarding fees for 34.4 hours spent reviewing a transcript, researching, and writing a 13-page, 1.5 spaced opening brief raising five issues).

         In fact, overall, Monk's attorneys spent less time on this case than is typical, likely due to the success achieved with the opening brief. See Schulten v. Astrue, No. 08-cv-1181, 2010 WL 2135474, at *6 (N.D. Ill. 2010) (concluding that 40 -60 hours of combined attorney and legal assistant time is a permissible range of time spent on social security appeals); see also, e.g., Witt v. Colvin, No. 2:14-cv-443, 2016 WL 3049568, at *2 (N.D. Ind. May 31, 2016) (awarding fees for 54.6 combined attorney and legal assistant hours where the commissioner stipulated to remand); Davenport v. Colvin, No. 2:11-cv-402, 2013 WL 5701060, *3 (N.D. Ind. Oct. 17, 2013 (awarding fees for 63.86 hours); Copeland v. Astrue, No. 2:11-cv-363, 2012 WL 4959482, at *2 (N.D. Ind. Oct. 17, 2012) (awarding fees for 66.2 combined attorney and legal assistant hours).

         Under these circumstances, any reduction in time would be arbitrary and beyond my authority. See Smith v. Great Am. Rests., Inc., 969 F.2d 430, 439 (7th Cir.1992) (“[T]he district court may not arbitrarily reduce the number of hours requested; if it reduces hours it should provide a ‘concise but clear explanation.'”) (internal citation omitted). The 37.6 hours Monk's attorneys spent on his case were reasonably expended.

         Enhanced Hourly Rate

         Next, the Commissioner argues that plaintiff's counsel should not receive an enhanced rate of $190 per hour based on the national CPI but instead should be limited to an enhanced rate based on the Midwest Urban CPI, or $184 per hour. Although statutory rate for social security appeals is $125 per hour, courts may award an increased hourly rate based upon the cost of living if a fee higher than the statutory rate is justified. Sprinkle v. Colvin, 777 F.3d 421, 423 (7th Cir. 2015). Regardless of whether the national CPI or the regional CPI is used, the claimant “must produce evidence that ...


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