United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON PLAINTIFF'S MOTION FOR ATTORNEY'S
Baker United States Magistrate Judge.
Marleta Simpson petitions the Court for attorney's fees
under the Equal Access to Justice Act in the amount of $11,
913 for 62.7 hours, calculated at an hourly rate of $190. The
Commissioner agrees that Simpson's counsel is entitled to
attorney's fees, but argues the amount requested is
unjust. The Commissioner argues the Court should reduce the
requested EAJA award by 15 hours and reduce the hourly rate
by $8.18. For reasons explained below, Simpson's EAJA fee
request is reasonable. Simpson's EAJA fee request [Filing
No. 35] is granted.
Simpson's attorney's time was reasonably
Commissioner argues that the 62.7 hours of attorney time
billed is excessive given the routine nature of this case.
The Commissioner contends that 32.8 hours spent preparing the
opening brief and 15.5 hours preparing the reply brief is an
abnormally large amount of time and asks the court to reduce
the compensable number of hours spent on the briefs by 15
because the 62.7 hours expended fall outside the permissible
range of Social Security fee awards.
Commissioner relies on Schulten v. Astrue, No. 08 CV
1181, 2010 WL 2135474, at *6 (N.D. Ill. May 28, 2010), in
which the Court found that 40-60 hours is generally the
“permissible range” for attorney's work.
However, Schulten does not stand for a 60-hour limit
on reasonable attorney's fee awards. To illustrate this
point, Simpson points to Buis v. Colvin, No.
1:13-CV-00878-RLY-MJD, 2015 WL 6393937, at *9 (S.D. Ind. Oct.
22, 2015), in which the Court found that 105.5 hours of
attorney time expended was reasonable. In Buis, the
Court held it was reasonable that the attorney spent 45.05
hours on the opening brief and 25 hours on the reply.
Id. at *7-8.
case law does not support reducing Simpson's requested
fee simply because her attorney expended more than 60 hours.
The Commissioner points to the “short” record on
appeal of 683 pages, with only 324 pages of medical records
to support her position that Simpson's attorney should
not exceed 60 hours. However, 683 pages is not a small record
considering “[t]he difficulty with social security
appeals lies . . . in the application of the law to the
facts.” Townsend v. Colvin, No. 2:12-CV-516
PRC, 2014 WL 6617641, at *2 (N.D. Ind. Nov. 18, 2014)
(“a 653-page administrative record is by no means
short”). Simpson's attorney spent significant time
combing through the medical record to bring evidence to the
Court's attention. Simpson filed a 28-page brief,
including 14 pages of facts and procedural history. Simpson
used this context to raise five issues on appeal, resulting
in the Court remanding the matter for further consideration.
Furthermore, the Commissioner's argument that the issues
are not complex fails to account for Simpson's burden of
identifying evidence and arguments that support a finding of
error. See Hochgesang v. Colvin, No.
1:14-CV-2044-DKL-RLY, 2015 WL 7288628, at *3 (S.D. Ind. Nov.
16, 2015) (holding a plaintiff did not have to remove
arguments the Commissioner believed to be weaker). While
40-60 hours is a good rule of thumb, it is not conclusive. In
this case, Simpson's attorney expended a reasonable
amount of time preparing and writing this appeal, which
justifies an EAJA fee award of 62.7 hours.
Simpson's attorney's billing rate should not be
Commissioner argues that Simpson's attorney's hourly
rate of $190 should be reduced by $8.18 to reflect the
prevailing market rate. The Commissioner contends this
reduction is necessary so that Simpson's attorney's
hourly rate is in line with the midwest market rather than
the national market. The Commissioner argues Simpson presents
no evidence the national market more accurately reflects the
prevailing rate. However, the Commissioner admits that courts
have used both national and regional markets without clear
preference for either. [Filing No. 37, at ECF p. 4.]
points to Seventh Circuit cases that resolve this issue using
the national market. For example, in Smith v.
Colvin, No. 1:12-CV-320, 2013 WL 6148100, at *2 (N.D.
Ind. Nov. 22, 2013), the court chose the higher national rate
because the Seventh Circuit has no preference, other nearby
attorneys use the same calculation, and the different amount
was relatively nominal. Smith is directly on point.
Furthermore, Simpson submits the affidavit of an Indianapolis
attorney familiar with Social Security who states that $190
is below the hourly rate charged by comparable attorneys in
the Indianapolis area and consistent with similar EAJA
requests. [Filing No. 35-3, at ECF p. 2.] The relatively
nominal difference of $8.18 does not make this requested
amount of $190 unreasonable. Moreover, Simpson's counsel
has recently been awarded attorney's fees at a rate of
$190 an hour in a similar case. Auterson v. Colvin,
No. 2:15-cv-384-LJM-MJD (S.D. Ind. July 6, 2016).
Accordingly, the EAJA award is based on the requested hourly
rate of $190.
petition for attorney's fees is therefore granted.
[Filing No. 35.] Simpson's counsel is awarded $12,
in attorney's fees, paid directly to counsel, within 70
Simpson's petition originally
requested $11, 913 [Filing No. 35] but the Commissioner's
challenge resulted in an additional 0.6 hours and $114 in
fees. The EAJA fee award ...