United States District Court, N.D. Indiana, Hammond Division
MELISSA M. PITMAN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.
OPINION AND ORDER
P. Rodovich United States Magistrate Judge.
matter is before the court on the Motion of Award of
Attorney's Fees Pursuant to the Equal Access to Justice
Act 28 U.S.C. 2412 [DE 36] and the Supplemental Motion of
Award of Attorney's Fees Pursuant to the Equal Access to
Justice Act 28 U.S.C. 2412 [DE 43] filed by the plaintiff,
Melissa Pitman, on June 23, 2017 and August 11, 2017,
respectively. For the following reasons, the motions are
plaintiff, Melissa M. Pitman, applied for Disability
Insurance Benefits and was found not disabled by the Social
Security Administration. Pitman appealed the decision to this
court, and on March 31, 2017, the ALJ's decision was
remanded for further proceedings. On June 23, 2017, Pitman
filed the instant motion for attorney's fees, requesting
$10, 008.40 for 52.40 hours of work, plus costs of $400.00.
The Commissioner disputes whether the amount of time billed
and Pitman's requested fee were reasonable.
also has filed a supplemental motion for award of
attorney's fees under the EAJA, seeking recovery of an
additional $1, 824.05 in attorney fees for the 9.55 hours
that counsel spent on this litigation after the Commissioner
opposed her motion for EAJA fees. The Commissioner has not
filed a response to Pitman's supplemental motion, and the
time to do so has passed.
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 United States 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, 110 S.Ct. 2316, 110 L.Ed.2d 134
(1990); Golembiewski v. Barnhart, 382 F.3d 721,
723-34 (7th Cir. 2004). 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 allegation that the position of the United States was not
substantially justified. 28 U.S.C. § 2412(d)(1)(B);
see also Scarborough v. Principi, 541 U.S. 401, 405,
124 S.Ct. 1856, 158 L.Ed.2d 674 (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)
Commissioner has not contested that Pitman was the prevailing
party, that she is eligible to receive an award, and that the
position of the United States was substantially justified.
However, the Commissioner disputes whether the amount of time
Pitman's attorney billed was reasonable. Hours that are
not properly billed to one's client also are not properly
billed to one's adversary pursuant to statutory
authority. Hensley v. Eckerhart, 461 U.S. 424, 434,
103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (quoting Copeland v.
Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980)). 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. See Hensley,
461 U.S. at 437, 103 S.Ct. at 1940. 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. See Hensley, 461
U.S. at 437, 103 S.Ct. at 1940; Montanez v. Simon,
No. 13-1692, 2014 WL 2757472, at *6 (7th Cir. 2014)
(explaining that the court has broad discretion to strike
vague or unjustified billing entries).
Commissioner has argued that because the record was of
moderate size and the case did not involve any complex or
novel issues, it did not warrant 39.85 hours of work drafting
an opening brief and 52.4 hours of attorney time in total.
The Commissioner has indicated that the record was only 858
pages and further has argued that Pitman has not met her
burden of proof that the hours were reasonably expended. The
Commissioner contends that courts have found similar numbers
of hours excessive and subsequently reduced the amounts
claimed. However, in Donaldson v. Colvin, 2013 WL
1156414, at *2-3 (S.D. Ill. 2013), the court found that the
plaintiff had made calculation errors in the billing hours,
and the hours were reduced, which has not been alleged in
this matter. The court also found that the amount of time
spent briefing was excessive, but did not explain why, other
than stating that the issues were common in Social Security
Cases. Donaldson, 2013 WL 1156414, at *2-3.
reply brief, Pitman referred the court to several cases that
awarded attorney's fees for similar hours of work on
opening briefs. In Vian v. Commissioner of Social
Security, Cause No. 1:15-cv-00040-SLC, 2017 WL 233516 *2
(N.D. Ind. May 26, 2017), the court found that 37.5 hours
spent preparing and drafting an opening brief was not
excessive and cited several other recent cases that all found
that 34-38 hours spent working on an opening brief was not
excessive. See, e.g., Monk v. Colvin, No.
2:15-cv-233, 2016 WL 4445659, at *2 (N.D. Ind. Aug. 23, 2016)
(finding 37.6 hours spend reviewing the record and drafting
the opening brief “on par with the time that other
courts in this circuit have found reasonably expended during
the initial stage of a social security appeal”
(citations omitted)); Verlee v. Colvin, No.
1:12-CV-45-TLS, 2013 WL 6063243, at *9 (N.D. Ind. Nov. 18,
2013) (approving 36.4 hours spent preparing an opening
brief); Garcia v. Colvin, No. 1:11-cv-00165, 2013 WL
1343662, at *2 (N.D. Ind. Apr. 3, 2013) (approving 37.75
hours spent reviewing the transcript, researching, and
preparing an opening brief that raised six arguments);
Burke v. Astrue, No. 08 C 50136, 2010 WL 1337461, at
*3 (N.D. Ill. Mar. 31, 2010) (concluding that 34.4 hours was
a reasonable amount of time to expend reviewing the
transcript, researching, and drafting a 13-page, 1.5 spaced
opening brief that raised five issues); Upperton v.
Barnhart, No. 02-C-0534-C, 2003 WL 23185891, at *2 (W.D.
Wis. Nov. 13, 2003) (determining that it the facts section,
reviewing a 499-page transcript and drafting and revising a
32-page brief that advanced seven arguments was not
unreasonable for two attorneys to spend 37.1 hours, which
included 11.1 hours drafting).
the time spent on the opening brief in this matter was 39.40
hours, including reviewing a fact intensive 858 page record,
which is within what is considered reasonable. Pitman
contends that her medical history was diverse and lengthy,
which required a 13 page Statement of Facts that focused on
medical evidence. Also, counsel had to respond to the seven
reasons that the ALJ gave to discount Pitman's
credibility. Pitman has indicated that the overall time spent
by counsel was well within the parameters considered
reasonable by the courts within the Seventh Circuit. In
addition, the Commissioner has failed to identify any
specific entries that were unreasonable. See Gibson ex
rel. C.E. v. Astrue, 2013 WL 250668, *4 (N.D. Ill. Jan.
23, 2013) (explaining that the hours would not be reduced
because the Commissioner did not specify a single entry that
he claimed to be unreasonable) (citing Schulton v.
Astrue, 2010 WL 2135474, at *1 (N.D. Ill. 2010)). Taking
all of this into consideration, the time billed by
Pitman's counsel was reasonable.
the Commissioner has argued that the Pitman's adjusted
hourly rate, $191.00, was improper. There 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.” 28 U.S.C. §
2412(d)(2)(A)(ii). “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).
Commissioner contends that Pitman's counsel should have
calculated the cost of living increase using the
“Midwest Urban” average of the Consumer Price
Index, resulting in an hourly rate of $187.26, rather than
the “All Urban” index. The Commissioner has
indicated that a regional index, specifically the Midwest
urban areas, is more appropriate because it most accurately
reflects the increase in the cost-of-living.
has argued that the national CPI should control because it is
consistent with the language in 28 U.S.C. 2412(d)(2)(A) and
fulfills the purpose of the EAJA statutory gap. Pitman
contends that using a regional index may lead to further
litigation issues because there are multiple regional and
local indexes that could be applied and it may be difficult
to ascertain which regional index should be used if legal
fees are incurred in multiple regions. Further, Pitman has
indicated how her counsel calculated the requested hourly
rate of $191.00, based on the cost of living increase
established by national CPI since ...