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Bohannon v. Colvin

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

January 18, 2017

SHERRIE BOHANNON, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

          OPINION AND ORDER

          JOHN E. MARTIN, MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff's Motion for Attorney's Fees Under the Equal Access to Justice Act [DE 29], filed by Plaintiff on June 27, 2016. On March 29, 2016, the Court issued an Opinion and Order remanding this matter for further proceedings. Plaintiff now requests that the Court award her $11, 995.49 in attorney fees under the Equal Access to Justice Act (EAJA). On July 5, 2016, Defendant filed her response [DE 30] to the Motion, conceding that Plaintiff is entitled to a fee award but arguing that the award should not exceed $6, 328.68. Plaintiff filed a reply [DE 31] on July 12, 2016, and requested an additional $402.42 in attorney fees for preparing the reply.

         ANALYSIS

         The EAJA allows a prevailing plaintiff to recoup reasonable attorney fees incurred in litigation against the Commissioner of Social Security “unless the court finds that the position of the [Commissioner] was substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A); see also Commissioner, I.N.S. v. Jean, 496 U.S. 154, 154 (1990); Golembiewski v. Barnhart, 382 F.3d 721, 723-24 (7th Cir. 2004). Under 28 U.S.C. section 2412(d)(1)(B), a fee application must be filed within thirty days of a court's final judgment and must satisfy the following requirements: (1) a showing that the applicant is a “prevailing party;” (2) a showing that the applicant is “eligible to receive an award;” (3) a showing of “the amount sought, including an itemized statement from any attorney or expert witness representing or appearing on behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed;” and (4) an “alleg[ation] that the position of the [Commissioner] was not substantially justified.” 28 U.S.C. § 2412(d)(1)(B); see also Scarborough v. Principi, 541 U.S. 401, 405 (2004); United States v. Hallmark Constr. Co., 200 F.3d 1076, 1078-79 (7th Cir. 2000) (setting forth the elements of § 2412(d)(1)(A) & (B)).

         By obtaining a remand, Plaintiff is considered a “prevailing party.” See Bassett v. Astrue, 641 F.3d 857, 859 (7th Cir. 2011). There is no dispute that Plaintiff's net worth does not exceed two million dollars. See 28 U.S.C. § 2412(d)(2)(B). Plaintiff filed the instant fee application within the period in which to file a petition for fees. See 28 U.S.C. §§ 2412(d)(1)(B), (d)(2)(G). Furthermore, the Commissioner “acknowledge[d] that Plaintiff is entitled to recovery of fees under the Equal Access to Justice Act.” DE 30 at 3. As a result, the Court finds that Plaintiff is entitled to an attorney fee award under the EAJA.

         The limited issue before the Court, as raised in Defendant's response, is the reasonableness of Plaintiff's fee request. The Commissioner asserts that both the hours worked and the hourly rate used in Plaintiff's request are unjustified. The Commissioner requests that the Court lower Plaintiff's overall fee request by reducing the number of hours upon which the fee calculation is based and by reducing the hourly rate used in the calculation.

         A. Reasonableness of Hours Expended

         The Commissioner argues that Plaintiff's counsel spent too many hours working on this case.

         The Commissioner contends that the administrative record was not long or complicated and that the arguments raised in the opening brief were standard. Defendant requests that the Court reduce the attorney time by at least 27.3 hours, deducting 15 hours from the time spent on the opening brief, 8 hours from the time spent on the reply brief, and 4.3 hours spent editing and revising the opening brief. Plaintiff argues that the hours expended by her attorney were reasonable because the opening and reply briefs brief included extensive citations to cases, regulations, rulings, and medical treatises. Furthermore, Plaintiff asserts that the stated hours worked, 62.2, is near the standard range for Social Security cases in the Seventh Circuit.

         After reviewing counsel for Plaintiff's time itemization, the Court finds that the hours worked in this case were reasonably expended. The standard range for hours worked on Social Security litigation in the Seventh Circuit is 40-60 hours. See Ruiz v. Colvin, No. 2:14-CV-69-JEM, 2016 WL 2908287, at *2 (N.D. Ind. May 18, 2016) (citation omitted). The number of hours worked in this case, 62.2, is slightly higher than the standard range. However, both Plaintiff's opening and reply briefs made significant and in-depth citations to the record below. Furthermore, attorneys in this district have frequently been awarded fees based on hours significantly higher than the 40-60 range. See Ruiz, 2016 U.S. Dist. LEXIS 65761 at *8-9 (collecting cases). Even though Plaintiff's counsel is an experienced Social Security attorney and the issues raised in Plaintiff's briefs are frequently raised in Social Security appeals, those facts alone do not justify decreasing Plaintiff's fee request. Each case requires new research and investigation, which is often time consuming. See Ruiz, 2016 U.S. Dist. LEXIS 65761 at *11 (N.D. Ind. May 18, 2016).

         Accordingly, the hours Plaintiff's attorney worked are reasonable.

         B. Reasonableness of Hourly Rate

         Defendant also argues that the hourly rate used in Plaintiff's fee request is too high. Defendant asserts that this Court should rely on the regional Consumer Price Index (CPI) rather than the national CPI in determining the appropriate hourly fee. Using the national CPI, the hourly fee is $191.33. Using the regional CPI, the hourly fee is $186.08, $5.25 lower.

         Plaintiff asserts that the Northern District of Indiana routinely uses the national CPI in setting the hourly rate, citing to this Court's order in Ruiz v. Colvin, No. 2:14-CV-69-JEM, 2016 WL 2908287, at *2 (N.D. Ind. May 18, 2016). Plaintiff also attached declarations from six attorneys who routinely work on Social Security cases in the Seventh Circuit. These declarations demonstrate that the going rate for similar services performed by experienced Social Security attorneys is typically $250 to $500 per hour. The ...


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