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Dowell v. Colvin

United States District Court, D. Maine

January 5, 2015

JEFFREY ACHESON DOWELL, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

For JEFFREY ACHESON DOWELL, Plaintiff: FRANCIS JACKSON, LEAD ATTORNEY, JACKSON & MACNICHOL, SOUTH PORTLAND, ME; HOWARD D. OLINSKY, LEAD ATTORNEY, OLINSKY LAW GROUP, SYRACUSE, NY.

For SOCIAL SECURITY ADMINISTRATION COMMISSIONER, Defendant: MOLLY E. CARTER, LEAD ATTORNEY, NATASHA OELTJEN, SOCIAL SECURITY ADMINISTRATION OFFICE OF GENERAL COUNSEL, BOSTON, MA.

RECOMMENDED DECISION ON MOTION FOR ATTORNEY FEES PURSUANT TO THE EAJA

John H. Rich III, United States Magistrate Judge.

The plaintiff applies for an award of attorney fees in the sum of $8, 825.34 pursuant to the Equal Access to Justice Act (" EAJA"), 28 U.S.C. § 2412, after obtaining reversal and remand of an adverse decision by the commissioner. See Motion for Attorney's Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (" Motion") (ECF No. 34); Attorney's Affidavit and Memorandum in Support of Motion for EAJA Fees (" Olinsky Aff.") (ECF No. 34-1), attached thereto. He seeks an additional $484.45 for 2.5 hours of attorney time spent drafting a reply in support of the Motion, for a total of $9, 309.79. See Plaintiff's Attorney's Reply Brief in Support of the Motion for Attorney's Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (" Reply") (ECF No. 36) at 8.[1] For the reasons that follow, I recommend that the court grant the Motion, but award a total of only $6, 887.54 in fees.

The EAJA provides, in relevant part:

[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 . . . including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, 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). The EAJA allows fee reimbursement to a prevailing party only for " reasonable fees and expenses of attorneys[.]" Id. § 2412(b). " [A] prevailing party that satisfies EAJA's other requirements may recover its paralegal fees from the Government at prevailing market rates." Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 590, 128 S.Ct. 2007, 170 L.Ed.2d 960 (2008). " The plaintiffs bear the burden of establishing the reasonableness of the rates and hours submitted in their application for fees." Mason v. Maine Dep't of Corr., 387 F.Supp.2d 57, 60 (D. Me. 2005).

The commissioner concedes that the plaintiff is a prevailing party entitled to an EAJA award. See Opposition at 2. She does not contest a requested award of $144 for 1.8 hours of attorney time spent on administrative work, calculated at the rate of $80 per hour, or the requested hourly rate of $193.78 for attorney time spent on other work. See id. at 3-7. However, she opposes the plaintiff's bid for an award for 44.8 hours of time spend on substantive work, contending that this case warranted no more than 25 hours of attorney time. See id. at 4-6.

She asserts that, in this district, attorneys representing Social Security claimants generally have received EAJA awards of between $3, 000 and $5, 000 for 20 to 25 hours of work on a case, a proposition for which she cites five recent cases. See id. at 5-6 & n.1; Exhs. 1-2 thereto (EAJA award in Anglen v. Colvin, No. 1:13-cv-167-NT (D. Me. July 8, 2014), of $2, 886 for 15.6 hours of attorney time); Exhs. 3-4 thereto (EAJA award in Thompson v. Colvin, No. 1:12-cv-369-DBH (D. Me. Nov. 25, 2013), of $4, 555.78 for, by my calculations, 21.5 hours of attorney time and 3.85 hours of paralegal time plus costs); Exhs. 5-6 thereto (EAJA award in Tompkins v. Colvin, No. 1:13-cv-73-GZS (D. Me. May 8, 2014), of $3, 991.31 for 19.05 hours of attorney time and 5.75 hours of paralegal time); Exhs. 7-8 thereto (EAJA award in Palmer v. Colvin, No. 2:13-cv-194-NT (D. Me. June 19, 2014), of $3, 636 for 20.2 hours of attorney time); Exhs. 9-10 thereto (EAJA award in Healey v. Colvin, No. 1:13-cv-101-DBH (D. Me. June 2, 2014), of $5, 248.38 for, by my calculations, 27.3 hours of attorney time and 4.8 hours of paralegal time plus costs).

She adds that (i) the plaintiff's attorney, Howard Olinsky, is a very experienced Social Security attorney, (ii) while Olinsky, who is from New York, does not typically practice in the First Circuit, he raised three issues typical of a Social Security case in any jurisdiction -- evaluation of medical opinions, evaluation of credibility, and vocational expert testimony, and (iii) the administrative record was only 422 pages long. See id. at 6. She contends that an award of the fee sought in this case would be " grossly out of line" with those awarded in recent Social Security cases. See id.

The plaintiff counters:

1. As this court has acknowledged, the commissioner routinely concedes in other courts that " a claim for up to forty hours of attorney time is within the pale for a typical Social Security case." Reply at 1 (quoting Golfieri v. Astrue, No. 06-14-B-W, 2007 WL 922256, at *3 (D. Me. Mar. 26, 2007) (rec. dec., aff'd Apr. 16, 2007)). The court has discretion to deviate from that range, awarding compensation from a higher number of hours, when doing so would be reasonable in the circumstances. See id. at 1-2.

2. Many courts have criticized the approach of reducing the number of compensable hours to fit within a typical range or reflect the " average" time spent on other cases. See id. at 3-4 (citing, inter alia, Costa v. Commissioner of Soc. Sec. Admin., 690 F.3d 1132, 1136 (9th Cir. 2012); Crim v. Commissioner of Soc. Sec., No. 1:11-cv-137, 2013 WL 1063476 (S.D. Ohio Mar. 14, 2013) (rec. dec., aff'd July 5, 2013); Christmas v. Astrue, No. 3:09CV00005, 2010 WL 2326510 (W.D. Va. June 9, 2010)).

3. In similar cases, the United States District Courts for the Northern District of New York, the Western District of New York, and the Northern District of Georgia have approved EAJA awards to Olinsky of $8, 250, $7, 900, and $8, 374.67. See id. at 4.

4. For the proposition that it is appropriate to look to awards in similar cases, the commissioner cites Kimball v. Shalala, 826 F.Supp. 573, 578 (D. Me. 1993), which is inapposite because it pertains to a fee request pursuant to the Social Security Act, 42 U.S.C. § 406(b)(1), not the EAJA. See id. at 4-5.

5. The instant case turned on the administrative law judge's failure to support his residual functional capacity determination with any evidence from a medical source, an issue that is treated differently by different circuit courts of appeals. See id. at 5-6. It was necessary for Olinsky to research the First Circuit's treatment of the issues in the case. See id. at 6-7.

6. With respect to the assertedly small size of the record, Olinsky spent 5.5 hours reviewing, making notes, and marking the administrative transcript in preparation for writing the brief. See id. at 6. This translates to approximately 1.28 pages per minute. See id. A speedier, more cursory review would have been neither diligent nor prudent. See id.

7. A plaintiff's attorney's expertise can be a basis for increasing an EAJA award. See id. at 7. Courts have declined to reduce fees simply because attorneys are experienced in Social Security law. See id.

To the extent that the plaintiff contends that it is inappropriate to measure the reasonableness of a Social Security EAJA fee request in part by the yardstick of awards made in comparable cases, I disagree. It is true that the portion of Kimball cited by the commissioner pertains to section 406(b) fee requests rather than requests pursuant to the EAJA. See Kimball, 826 F.Supp. at 578. Nonetheless, the plaintiff's own authorities indicate that a court appropriately takes into account average ranges of hours in assessing the reasonableness of an EAJA fee request. Indeed, while the United States Court of Appeals for the Ninth Circuit concluded in Costa that it was " an abuse of discretion to apply a de facto policy limiting social security claimants to twenty to forty hours of attorney time in 'routine' cases[, ]" it acknowledged that the typical range of hours was a fact that district courts " may consider . . . in determining the reasonableness of a specific fee request" so long as they " explain[ed] why the amount of time requested for a particular task is too high." Costa, 690 F.3d at 1136.

In addition, in Crim, another case cited by the plaintiff, the United States District Court for the Southern District of Ohio " respectfully part[ed] ways with Costa to the extent that the court in one breath permits trial courts to 'consider, ' as a legitimate factor, widespread knowledge of the normative ranges of hours spent in similar social security cases, but in the next breath questions 'the usefulness of reviewing the amount of time spent in other cases to decide ...


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