United States District Court, N.D. Indiana, Hammond Division
RANDALL A. HEARN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Application for
Attorneys' Fees Under the Equal Access to Justice Act [DE
25], filed by Plaintiff Randall A. Hearn on December 12,
5, 2016, Plaintiff filed a Complaint seeking judicial review
of the Commissioner's decision to deny him disability
insurance benefits and supplemental security income. On
December 9, 2016, Plaintiff filed an Opening Brief. On March
23, 2017, the Commissioner filed a response, and on April 5,
2017, Plaintiff filed a reply brief. On September 14, 2017,
the Court reversed the decision of the Commissioner of Social
Security and remanded for further proceedings.
instant Application for Attorneys' Fees, Plaintiff seeks
fees under the Equal Access to Justice Act
(“EAJA”) in the amount of $9, 355.79 for 32.1
attorney hours at an hourly rate of $186.89 in 2016, 16.04
attorney hours at an hourly rate of $189.44 in 2017, and 3.18
law clerk hours at an hourly rate of $100.00.
January 9, 2018, the Commissioner filed a response brief in
opposition to Plaintiff's fee request, opposing the
number of hours as unreasonable and also asserting that any
EAJA fee should be paid to Plaintiff. In the reply brief,
Plaintiff requests an additional 3.5 hours of attorney time
at the 2017 rate for preparation of that brief. In total,
Plaintiff requests an award for 54.82 hours of attorney and
law clerk time, which is equal to $10, 018.83.
bears the burden of demonstrating that the requested hours
are reasonable. Hensley v. Eckerhart, 461 U.S. 424,
437 (1983). Counsel for the prevailing party should make a
good-faith effort to exclude excessive, redundant, or
otherwise unnecessary hours. Id. at 434; see
also Tchemkou v. Mukasey, 517 F.3d 506, 510 (7th Cir.
2008) (“When calculating an EAJA award, we must exclude
hours that were not reasonably expended and we may reduce the
amount of the award accordingly.” (internal quotation
marks omitted) (quoting Hensley, 461 U.S. at 434 and
citing 28 U.S.C. § 2412(d)(1)(C))). The amount of the
fee award is a matter of discretion for the Court because of
its “superior understanding of the litigation and the
desirability of avoiding frequent appellate review of what
essentially are factual matters.” Hensley, 461
U.S. at 437.
Commissioner contends that Plaintiff's fee application is
excessive because the time expended was not warranted in
light of the small size of the administrative record and the
routine nature of the case. The Commissioner points out that
the administrative record in this case was only 345 pages
and, of those pages, the medical records were only 82 pages.
The Commissioner further argues that, in light of the years
of experience of Plaintiff's counsel, the hours spent by
counsel were unreasonable. The Commissioner specifically
highlights the 8.3 hours spent reviewing the administrative
record, 7 hours spent drafting the statement of facts, and 20
hours spent on legal research and drafting arguments.
counters that a thorough review of the record was necessary,
in part because the vocational expert, who intended to
testify telephonically, was disconnected before his
testimony, and his handwritten answers to questions asked by
the ALJ were hard to read. Plaintiff also indicates that a
thorough reading of the record was necessary to find
Plaintiff's diagnosis of cervical radiculopathy, which
led to this case being remanded. Plaintiff also asserts that
the detailed statement of facts was necessary to show the
severity of Plaintiff's impairments, including his pain
further maintains that the briefing encompassed four separate
issues and that, though lead counsel is experienced in this
type of litigation, counsel responsible for researching and
writing the opening and reply briefs does not have extensive
experience litigating Social Security disability cases.
within the Seventh Circuit Court of Appeals have found a
reasonable number of hours for work on a social security
appeal to range from 40-60 hours. See, e.g.,
Copeland v. Astrue, No. 2:11-CV-363, 2012 WL
4959482, at *2 (N.D. Ind. Oct. 17, 2012) (citing cases);
Schulten v. Astrue, No. 08 C 1181, 2010 WL 2135474,
at *6 (N.D. Ill. May 28, 2010) (citing cases).
reviewed the fee petition, the Court finds that the number of
hours expended by Plaintiff's attorneys, including the
hours spent on the reply to the instant motion, is reasonable
in light of the facts and circumstances of this case and
consistent with the range of fee requests in social security
litigation before this Court.
parties dispute whether payment should be made to Plaintiff
or to Plaintiff's counsel. Plaintiff assigned her EAJA
fee to her counsel. However, any fees paid belong to
Plaintiff and not his attorney and can be offset to satisfy a
pre-existing debt that Plaintiff owes the United States under
Astrue v. Ratliff, 560 U.S. 586, 589 (2010).
the Court hereby GRANTS Plaintiff's
Application for Attorneys' Fees Under the Equal Access to
Justice Act [DE 25] and ORDERS that
Plaintiff is awarded attorney fees in the total amount of
$10, 018.83 in fees pursuant to the Equal Access to Justice
Act, 28 U.S.C. § 2412. If the Government determines that
Plaintiff does not owe a pre-existing debt subject to offset,
the Commissioner shall direct that the ...