Jensen v. Berryhill

• Decision Date: 01 October 2018
• Docket Number: Case No. 17-C-0755
• Citation: 343 F.Supp.3d 860
• Parties: Christiana JENSEN, Plaintiff, v. Nancy A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

343 F.Supp.3d 860

Christiana JENSEN, Plaintiff,

v.Nancy A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

Case No. 17-C-0755

United States District Court, E.D. Wisconsin.

Signed October 1, 2018.

Mary Traver, David F. Traver, Traver & Traver SC, Milwaukee, WI, for Plaintiff.

Social Security Administration, Brian E. Pawlak United States Department of Justice (ED-WI) Office of the US Attorney Milwaukee, WI, Alison T. Schwartz United States Social Security Administration Office of the General Counsel - Region V. Chicago, IL, for Defendant.

DECISION AND ORDER

LYNN ADELMAN, District Judge

Plaintiff Christiana Jensen filed this action for judicial review of an unfavorable administrative decision on her social security disability claim. On April 25, 2018, I remanded the case based on errors in the Administrative Law Judge's evaluation of the medical opinions, aspects of plaintiff's testimony, and the vocational evidence. Jensen v. Berryhill, No. 17-C-0755, 2018 WL 1942527, 2018 U.S. Dist. LEXIS 70500 (E.D. Wis. Apr. 25, 2018). On July 18, 2018, plaintiff filed a motion for attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412.

I. ENTITLEMENT TO AN AWARD

Under the EAJA, the court will award attorney's fees to the "prevailing party" in any civil action brought against the United States, "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) ; see Stewart v. Astrue, 561 F.3d 679, 683 (7th Cir. 2009) ("The EAJA provides that a district court may award attorney's fees where (1) the claimant was a ‘prevailing party,’ (2) the government's position was not ‘substantially justified,’ (3) no special circumstances make an award unjust, and (4) the claimant filed a timely and complete application with the district court.").

Plaintiff is the prevailing party in this action, as I reversed the unfavorable decision on her claim, remanded the matter pursuant to 42 U.S.C. § 405(g), sentence four, and directed that judgment be entered in her favor. See Shalala v. Schaefer, 509 U.S. 292, 300-02, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993). Plaintiff's motion, filed within 30 days of when the judgment became final and not appealable, see 28 U.S.C. § 2412(d)(1)(B), (d)(2)(G), is timely, and the Commissioner does not argue that her position was substantially justified or that special circumstances would make an award unjust. See Church v. Astrue, 496 F.Supp.2d 964, 966 (N.D. Ind. 2007) ("Under the EAJA, the government bears the burden of proving that its position was substantially justified."); Wirth v. Barnhart, 325 F.Supp.2d 911, 913 (E.D. Wis. 2004) ("The Commissioner bears the burden of demonstrating that her position was substantially justified or that special circumstances would make an award unjust."). Plaintiff is, accordingly, entitled to an award.

II. AMOUNT OF THE AWARD

A litigant seeking EAJA fees is required to demonstrate that the amount requested is reasonable. Lechner v. Barnhart, 330 F.Supp.2d 1005, 1011 (E.D. Wis. 2004). She must submit evidence supporting both the hours and rates claimed. Neave v. Astrue, 507 F.Supp.2d 948, 953 (E.D. Wis. 2008). If the documentation of time spent is inadequate, the district court may reduce the award accordingly. Id. 507 F.Supp.2d at 953. The court may also exclude hours that are excessive, redundant, or otherwise unnecessary. Palmer v. Barnhart, 227 F.Supp.2d 975, 979 (N.D. Ill. 2002). Parties seeking fees under the EAJA are further expected to exercise reasonable billing judgment. See Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ("Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority.").

As for the rate, the EAJA contains a presumptive cap of $125 an hour, although courts may award enhanced fees where they are justified because of an increase in the cost of living. Sprinkle v. Colvin, 777 F.3d 421, 423 (7th Cir. 2015) ; see 18 U.S.C. § 2412(d)(2)(A) ("The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that ... attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living ... justifies a higher fee."). An EAJA claimant seeking a cost-of-living adjustment to the rate need not offer proof of the effects of inflation on the particular attorney's practice or proof that no competent attorney could be found for less than the requested rate. Sprinkle, 777 F.3d at 423. Instead, an EAJA claimant may rely on a general and readily available measure of inflation such as the Consumer Price Index ("CPI"), as well as proof that the requested rate does not exceed the prevailing market rate in the community for similar services by lawyers of comparable skill and experience. Id. An affidavit from an attorney attesting to the prevailing market rate in the community may suffice to meet this burden. Id.

Here, plaintiff seeks fees in the amount of $11,341.00, based on a total of 58.10 hours worked and a rate of $195/hour for 2017 and $200/hour for 2018. She submits a time sheet documenting the hours spent, which counsel avers were reasonable and necessary to provide good representation. Plaintiff further relies on the CPI-U (covering all urban consumers) in seeking an increase in the rate based on inflation. Finally, she submits an affidavit from an attorney experienced in social security matters indicating that on a non-contingent, hourly basis counsel's legal services are worth about $250-280 per hour.

The Commissioner challenges the amount requested, both as to time and rate.

A. Time

The Commissioner argues that counsel did not adequately itemize the time entries. She notes that most of the hours requested – about 52 of 58 – are described only as "briefing." The Commissioner contends that she cannot ascertain whether "briefing" consisted of reviewing the record, researching, drafting, editing, or one of the many other tasks associated with summary judgment motions in disability cases. She notes that fee requests must be "supported by an itemized statement," Comm'r v. Jean, 496 U.S. 154, 158, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990), and that courts have reduced time for vague billing entries. See, e.g., Trump v. Colvin, No. 12 C 6194, 2015 WL 970111, at *5-6, 2015 U.S. Dist. LEXIS 25269 at *14-16 (N.D. Ill. Mar. 2, 2015) ; Habitat Educ. Ctr., Inc. v. Bosworth, Nos. 03C1024, 04C0254, at *6, 2006 WL 839166, at *6, 2006 U.S. Dist. LEXIS 21922 at *22 (E.D. Wis. Mar. 29, 2006) ; Cheng v. McCredit, No. 94 C 7520, 1995 WL 430953, at *3-4, 1995 U.S. Dist. LEXIS 10112 at *11-13 (N.D. Ill. July 11, 1995). She asks that I reduce plaintiff's recovery for such "briefing" work.

The Commissioner does not indicate by how much I should cut the bill or what methodology I should use to do the cutting.

See Smith v. Great Am. Restaurants, 969 F.2d 430, 439 (7th Cir. 1992) ("When attorney's fees are appropriate, ... the district court may not arbitrarily reduce the number of hours requested; if it reduces hours it should provide a concise but clear explanation.") (internal quote marks omitted). Nor does she cite any authority for requiring the type of itemization she seeks in a case of this sort.¹ See Sosebee v. Astrue, 494 F.3d 583, 588-89 (7th Cir. 2007) ("[T]he proceeding to recover fees under the [Equal Access to Justice] Act is intended to be summary; it is not intended to duplicate in complexity a public utility commission's rate of return proceeding.") (internal quote marks omitted).

While it might be preferable to break out time more finely (separating record review, legal research, brief drafting, editing, etc.),² social security matters are, in this district, treated as appeals, and parties are directed not to file summary judgment motions.³ Rather, once the case is commenced, the court simply issues a briefing schedule. Accordingly, one would expect that virtually all of a lawyer's time would be spent on briefing. Cf. Lechner, 330 F.Supp.2d at 1012 (approving 22 hours on the main brief and 11 hours on the reply, on the understanding that subsumed within the 22 hour period was the time counsel spent reviewing the administrative record).

The Commissioner does not contend that plaintiff's counsel billed for more time than is usually spent on similar matters. See Cummings v. Berryhill, No. 14 CV 10180, 2017 WL 926766, at *2, 2017 U.S. Dist. LEXIS 33502 at *3 (N.D. Ill. Mar. 8, 2017) ("The standard range for hours worked on Social Security litigation in the Seventh Circuit is 40-60 hours."); see also Harris v. Barnhart, 259 F.Supp.2d 775, 783 (E.D. Wis. 2003) (collecting cases approving fees in the 54-66 hour range). The record in this case was over 1600 pages, larger than the typical case, and counsel did not represent plaintiff at the administrative level; plaintiff's main brief was 30 pages and the reply 15. Given these circumstances, the total time requested seems reasonable.

B. Rate

The Commissioner argues that the court should apply a cost of living increase based on the Midwest CPI, which covers the geographic region where the case was litigated, rather than the (higher) national rate. By the Commissioner's calculations, use of the Midwest CPI would produce rates of $189.41 for 2017 and $191.86 for 2018.

The Commissioner first asserts that her approach is mandated by the statute, which refers to "prevailing market rates," 28 U.S.C. § 2412(d)(2)(A) ; by drafting the statute in this manner, Congress presumed that there was no single national market for lawyers. "The reason, of course, is because there is not one; disability attorneys in different geographic areas have differing costs and fees." (R. 22 at 4, citing Coursey v. Comm'r of Soc. Sec., 843 F.3d 1095, 1099 (6th Cir. 2016) (f...