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Miller v. Commissioner of Social Security

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

November 1, 2018

BRENT MILLER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, sued as Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          Susan Collins United States Magistrate Judge

         Before the Court is Plaintiff Brent Miller's petition to recover attorney fees in the amount of $10, 773.00 and $420.67 in costs and expenses under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, together with supporting documents.[1] (DE 23; DE 24; DE 27). Defendant Commissioner of Social Security (“Commissioner”) opposes the amount of Miller's fee request, arguing that: (1) the 56.7 hours billed by Miller's counsel in the district court litigation were not reasonably expended; and (2) 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 25). Miller timely filed a reply brief (DE 27), and thus the motion is ripe for ruling.

         For the following reasons, Miller'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 Miller's fee request. Rather, the Commissioner challenges the number of hours expended by Miller'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

         Miller, 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 Miller fails to meet his burden of showing that the 56.7 hours billed by his attorneys were reasonably expended. (DE 25 at 1-5). The Commissioner contends that the hours were excessive given that: (1) the five arguments that Miller advanced in his appeal were not complex or novel legal issues, but rather, were issues commonly litigated in Social Security cases; and (2) the administrative record in this case was only 455 pages. More particularly, the Commissioner claims that the 6.8 hours that Miller's counsel spent revising his opening brief is excessive given his counsel's extensive experience litigating Social Security matters and the routine arguments advanced in the brief, which should reasonably translate to efficiencies in presenting arguments to the Court. (DE 25 at 4). The Commissioner further asserts that the 15 hours Miller's counsel spent drafting his reply brief is excessive, given that the reply brief “followed the basic outline, argumentation, and legal authority from the opening brief.” (DE 25 at 4). As such, the Commissioner contends that Miller's 56.7 hours should be reduced by 10 hours, to a total of 46.7 hours.

         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 portions of the administrative record were less relevant to the appeal than others, “[Miller's] attorneys had to sift through everything to separate the wheat from the chaff.” Id. Furthermore, this is not a case where Miller's counsel also represented him at the administrative level (DE 27 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 thus, that counsel could have reviewed the record and drafted the opening and reply briefs 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[.]” Monk, 2016 WL 4445659, at *2 (citation omitted). “[B]ut that does not mean that providing a thorough exegesis of the record, pointing out various pieces of evidence that the administrative law judge overlooked or misrepresented, and explaining why those oversights are material to the outcome does not take time.” Id. (citation omitted).

         Furthermore, courts within the Seventh Circuit have found that a reasonable number of hours for work on a social security appeal ranges from 40 hours to 60 hours, see Kinsey-McHenry v. Colvin, No. 2:12-CV-332-PRC, 2014 WL 1643455, at *3 (N.D. Ind. Apr. 23, 2014) (collecting cases), and this case falls within that range. While 41.7 hours is on the high side for reviewing the record and preparing and revising the opening brief in a case with a 455-page transcript, it is not patently unreasonable, as Miller did advance five arguments even if they were fairly routine. See, e.g., Koelling v. Colvin, No. 2:15-cv-233, 2016 WL 1161338, at *2 (N.D. Ill. Mar. 24, 2016) (finding that 43 hours spent reviewing a 660-page record and drafting an opening brief presenting four arguments was not unreasonable); Monk, 2016 WL 4445659, at *2 (finding 37.6 hours spent 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)). Nor does spending 15 hours on a reply brief exceed the acceptable range of hours. See, e.g., Groskreutz v. Barnhart, No. 02-C-454-C, 2005 WL 567814, at *2 (W.D. Wis. Feb. 28, 2005) (while spending nearly 20 hours on a 10-page reply brief was on the high side, it was not ...


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