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Banks v. Commissioner of Social Security

United States District Court, N.D. Indiana, Fort Wayne Division

August 23, 2017

ANDREW BANKS, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, sued as Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.


          Susan Collins, United States Magistrate Judge

         Before the Court is Plaintiff Andrew Banks's motion to recover attorney's fees in the amount of $10, 393.00 under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, together with supporting documents.[1] (DE 27; DE 28). Defendant Commissioner of Social Security (“Commissioner”) opposes the amount of Banks's fee request, arguing that: (1) the 54.7 hours billed by Banks's counsel in the district court litigation were not reasonably expended; and (2) that counsel should have calculated their hourly rates using the cost of living adjustment for the geographic region where the case was litigated, rather than the national rate. (DE 33). Banks timely filed a reply brief (DE 34), and thus the motion is ripe for ruling.

         For the following reasons, Banks's motion for EAJA fees will be GRANTED.

         A. Applicable Legal Standard

         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). Here, the Commissioner does not raise a substantial justification argument in response to Banks's fee request. Rather, the Commissioner challenges the number of hours expended by Banks's counsel in this litigation and the cost of living index used by counsel when calculating their hourly rate. The Court will address each of these arguments, in turn.

         B. The Number of Attorney Hours Billed

         Banks, as the fee applicant, bears the burden of proving that the EAJA fees sought are reasonable. See 28 U.S.C. § 2412(d)(1)(B); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). Factors the Court should consider in evaluating the reasonableness of a fee request are:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.

Hensley, 461 U.S. at 430 n.3.

         “Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority.” Id. at 434 (citation omitted). “As a result, the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary.” Davenport v. Astrue, No. 2:07-CV-0064-PRC, 2008 WL 2691115, at *7 (N.D. Ind. July 3, 2008) (citing Hensley, 461 U.S. at 434). “The amount of a fee award is left to the discretion of the district court because of its ‘superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters.'” Id. (quoting Hensley, 461 U.S. at 437).

         The Commissioner argues that Banks fails to meet his burden of showing that the 54.7 hours billed by his attorneys were reasonably expended. (DE 33 at 3). The Commissioner contends that the hours were excessive given that: (1) the two arguments that Banks advanced in his appeal were not complex or novel legal issues, but rather, were issues commonly litigated in Social Security cases; (2) the administrative record in this case was only 416 pages, of which just 87 pages were medical records; and (3) some of the medical records were of limited relevance in that they related to Banks's medical issues in 2009 and early 2010, while he was still working and prior to his alleged onset date in December 2010. (DE 33 at 3).

         Given the length of the administrative record, the Commissioner challenges the 29 hours that Banks's counsel spent on his opening brief. (DE 33 at 3). The Commissioner further observes that the facts and procedural history section of Banks's opening brief was 17 pages, but the argument section was just half of that, eight pages. (DE 33 at 3). The Commissioner also believes that the 17.5 hours counsel spent on Banks's reply brief and the 3.8 hours spent on his EAJA fee petition and supporting brief are excessive, noting that many of the arguments are identical to those presented by Banks's counsel in their other Social Security cases.[2] (DE 33 at 3). As the Commissioner sees it, Banks's lead counsel has extensive experience in litigating Social Security cases, which should reasonably translate to efficiencies in presenting arguments to the Court. (DE 33 at 3). For all of these reasons, the Commissioner asks that the Court deduct 10 hours of attorney time from Banks's fee request. (DE 33 at 4).

         The Commissioner's arguments, however, are not persuasive. “To begin with, a 400-page administrative record is not short.” Monk v. Colvin, No. 2:15-cv-233, 2016 WL 4445659, at *2 (N.D. Ind. Aug. 23, 2016) (citations omitted). And even if some medical records were less relevant to the appeal than others due to the date the medical care was administered, “[Banks's] attorneys had to sift through everything to separate the wheat from the chaff.” Id. Furthermore, this is not a case where Banks's counsel also represented him at the administrative level (DE 28 at 8); thus, counsel had to review the administrative record for the first time during the district court litigation. See Seefeldt v. Colvin, No. 14-CV-320, 2016 WL 5793683, at *1 (E.D. Wis. Sept. 30, 2016) (“[C]ounsel did not represent [the claimant] at the administrative level and therefore had to familiarize herself with the record.”).

         Moreover, although the Commissioner argues that the issues raised in this case were routine and that counsel could have reviewed the record and drafted the opening brief in less time, the Commissioner “has identified nothing in the [opening] brief that could have been eliminated[.]” Monk, 2016 WL 4445659, at *2; see Staley v. Berryhill, No. 4:15-cv-00178-TAB-RLY, 2017 WL 2181151, at *1 (S.D. Ind. May 18, 2017) (“[T]he Commissioner fails to identify any factual or procedural background that Staley should have omitted.” (citation omitted)). In fact, “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 ...

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