United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Motion for
Attorney's Fees Under the Equal Access to Justice Act [DE
27], filed by Plaintiff Desiree Kinsey on June 21, 2017. The
Commissioner filed a response on July 18, 2017, and Plaintiff
filed a reply on July 28, 2017.
February 23, 2016, Plaintiff filed a Complaint with this
Court, seeking review of the Commissioner's final
decision on her application for social security supplemental
security income benefits. On June 21, 2016, Plaintiff filed
an Opening Brief. On June 27, 2017, the Commissioner filed a
response, and on October 18, 2016, Plaintiff filed a reply.
On March 24, 2017, the Court granted the relief sought by
Plaintiff, reversing the ALJ's decision, remanding for
further proceedings, and directing the Clerk of Court to
enter judgment in favor of Plaintiff.
30, 2017, Plaintiff timely filed the instant motion, seeking
attorney fees under the Equal Access to Justice Act
(“EAJA”) in the amount of $15, 486.35 for 1.9
hours of legal assistant time at an hourly rate of $95.00 and
79.1 hours of attorney time at an hourly rate of $193.50 (for
initial matter, the Court notes that the parties agree that,
because Plaintiff requested in her brief only 79.1 of the
82.85 hours set out in the EAJA Itemization attached to the
brief (a difference of 3.75 hours), Plaintiff should only
recover fees for 79.1 hours. Accordingly, the Court reduces
the number of hours for June 2016 (when the most work was
done) by 3.75 hours, from 62.05 hours to 58.30 hours.
is a statutory cap of an hourly rate of $125.00 for
reasonable attorney fees under the EAJA. 28 U.S.C. §
2412(d)(2)(A)(ii). However, the statute allows for a cost of
living adjustment when “the court determines that an
increase in the cost of living or a special factor, such as
the limited availability of qualified attorneys for the
proceedings involved, justifies a higher fee.”
Id. “Courts should generally award the
inflation-adjusted rate according to the [Consumer Price
Index], using the date on which the legal services were
performed.” Sprinkle v. Colvin, 777 F.3d 421,
428 (7th Cir. 2015).
case, Plaintiff proposes using the Consumer Price Index for
the U.S. city average. In her response brief, the
Commissioner argues that the hourly rate should be based
instead on the Consumer Price Index for the
Chicago-Gary-Kenosha region, which is a subset of the Midwest
region. The Commissioner reasons that Plaintiff resides in
Lake County, Indiana, the Court is located in Lake County,
and Plaintiff's counsel is located in Cook County,
Illinois, all of which are in the Chicago-Gary-Kenosha
within the Court's discretion to choose between the U.S.
city average or the Midwest region rate (or an identified
subset of that rate). See Wright v. Berryhill,
1:14cv8163, 2017 WL 2588218, at *2 (N.D. Ill. June 14, 2017)
(citing Colvin, 777 F.3d at 428 n. 2). The Court
finds that the CPI for Chicago-Gary-Kenosha is most
appropriate. See Harrington v. Berryhill, 2017 WL
2502456, at *1 (S.D. Ind. June 9, 2017) (applying the Midwest
urban market CPI for the Indianapolis market); Pollard v.
Colvin, 1:14cv345, 2015 WL 846424, at *2-3 (S.D. Ind.
Feb. 26, 2015) (considering “several charts displaying
the standard hourly billing rates for attorneys in the
Indianapolis-Carmel, Indiana statistical area”).
the cost of living adjustment based on the CPI for
Chicago-Gary-Kenosha results in an adjusted hourly rate of
$181.89 for February 2016; $184.21 for June 2016; $184.35 for
October 2016; and $186.39 for April 2017.
results in attorneys fees totaling $14, 575.72 as follows:
$18.19 in February 2016 (.1 hour at $181.89/hr.); $10, 739.44
in June 2016 (58.30 hours at $184.21/hr.); $3, 631.70 in
October 2016 (19.7 hours at $184.35/hr.); and $186.39 in
April 2017 (1 hour at $186.39/hr.). To that, the Court adds
$429.34 for 2.3 hours of attorney time spent on the reply
brief in July 2017 at the adjusted hourly rate of $186.67 for
June 2017 (the most recent month available) for the
Chicago-Gary-Kenosha area, for a total of $15, 005.06.
Plaintiff's evidence supports 1.4 hours of legal
assistant time. Therefore, the Court further adds $133.00 for
1.4 hours of paralegal work at an hourly rate of $95.00, for
a total fee award of $15, 138.06.
Commissioner also argues that the requested fees are not
reasonable and that the Court should exclude a portion of the
82.85 hours that counsel for Plaintiff spent briefing this
case. The Court has carefully considered the
Commissioner's arguments, including the range of cases
cited by Plaintiff showing that cases average 40-60 hours for
a fee petition. The Court finds that, in light of the size of
the administrative record (1675 pages), the fact that this
case was previously remanded by the Court, the number of
issues raised in this appeal (law of the case doctrine
regarding headaches, the ALJ's analysis of the multiple
sclerosis diagnosis, the RFC assessment, the weight to a
treating physician's opinion, and the credibility
assessment), and the variation in time an individual attorney
may take in reviewing records and drafting briefs, the number
of hours spent in this case, albeit high, is not
Commissioner also contends that there is a total of 10.85
hours that should be excluded because Plaintiff provides no
description of the tasks performed on the EAJA itemization
and, thus, cannot show that they are reasonable. However, in
her reply brief, Plaintiff explains the formatting of the
itemization of each charge, accounting for the 10.85 hours.
on the foregoing, the Court hereby GRANTS
Plaintiff's Motion for Attorney's Fees Under the
Equal Access to Justice Act [DE 27] at an hourly rate
different than requested and ORDERS that
Plaintiff is awarded attorney fees in the total amount of