Somogy v. Astrue
| Decision Date | 25 January 2011 |
| Docket Number | CASE NO. 3:08-cv-269-J-TEM |
| Parties | REBECCA SOMOGY Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security,Defendant. |
| Court | U.S. District Court — Middle District of Florida |
This case is before the Court on Plaintiff's Petition for Attorney's Fees (Doc. #20, Petition), filed June 1, 2010. Plaintiff's counsel initially requested an award of $13,468.76 in attorney fees, $321.83 in expenses and $805 in costs pursuant to the Equal Access to Justice Act (hereinafter referred to as EAJA), 28 U.S.C. § 2412 (Doc. #20 at 1). Defendant opposed the Petition as a whole (Doc. #23, Opposition). Subsequently, Plaintiff's counsel sought and was given leave to file a reply brief to Defendant's opposition. Plaintiff's Reply to Defendant's Opposition to Plaintiff's Petition for Attorney Fees (Doc. #29, Reply) was filed on July 28, 2010. Plaintiff's counsel seeks an additional $1,252.51 under the EAJA for the time spent in preparation of the motion to reply and the reply brief itself (see Doc. #29-1). Defendant was given leave to file a sur-reply, but to date, has not filed any response to the Reply. Thus, this matter is ripe for the Court's ruling.
Defendant strenuously argues Plaintiff is not entitled to the EAJA fees in this matter because the position of the Commissioner was substantially justified. In making thisargument, Defendant correctly notes it is plausible to have taken a position in the litigation that was substantially justified, yet still "lose." See Pierce v. Underwood, 487 U.S. 552, 569 (1988). Defendant further argues the decision of this Court to affirm the ALJ's decision stands as support that the Defendant's position was substantially justified (Doc. #23 at 6). Defendant is correct in this assertion.
The view expressed by another court is one of the factors that may be considered when determining whether the government was substantially justified. Jean v. Nelson, 863 F.2d 759, 767 (11th Cir. 1988). The Court may also consider: (1) the state at which the litigation was resolved; (2) the legal merits of the government's position; (3) the clarity of the governing law; (4) the foreseeable length and complexity of the litigation; and, (5) the consistency of the government's position. Id. In the end, the Court may determine in its discretion whether the government was substantially justified to have litigated its case in the manner undertaken. See, e.g., id. at 767-68; Spruil v. Bowen, 691 F.Supp 302, 307 (M.D. Fla. 1988) ().
Under the EAJA, the government bears the burden of proving its position was substantially justified by showing that its case had a reasonable basis in law and a reasonable basis in fact. Jefferson v. Bowen, 837 F.2d 461, 462 (11th Cir. 1988) (per curiam). In this instance, Defendant failed to meet its burden. The case was appealed to the Eleventh Circuit on an issue that was raised by Plaintiff's counsel to this Court. Upon consideration, the Eleventh Circuit found the Commissioner, vis-a-vis the administrative law judge (ALJ), failed to apply the proper legal standards in evaluating the opinion evidence from one of Plaintiff's treating physicians. See Somogy v. Comm'r of Social Security, 366 Fed. Appx. 56, 64-65 (11th Cir. 2010). The case was remanded for further administrative proceedings to correct this error.
On the facts of this case, the Court may have agreed with the Commissioner's reasoning in finding Plaintiff was not disabled under the Social Security Act, but in light of the ruling from the Eleventh Circuit it cannot agree the position of the Commissioner with respect to evaluation of the medical opinion evidence was substantially justified. Notwithstanding the ruling of this Court, the Eleventh Circuit used current case law to clarify a nuance in the law with respect to fibromyalgia disability cases. See id. The Court finds attorney fees pursuant to the EAJA are authorized in this action.
Plaintiff, having obtained a sentence four remand/reversal denial of benefits, is a "prevailing party, " Shalala v. Schaefer, 509 U.S. 292, 300-02 (1993). The Commissioner's position regarding the defense of the ALJ's decision to discount a physician's opinion evidence in this case was not substantially justified. Review of the docket in this case reveals Plaintiff's counsel filed a timely application for attorney fees and nothing in the record indicates Plaintiff had a net worth of more than $2,000, 000 at the time the complaint was filed. There are no special circumstances which would make an award of the EAJA attorney fees unjust. See 28 U.S.C. § 2412(d); Commissioner, I.N.S. v. Jean, 496 U.S. 154, 158 (1990).
In considering a request for attorney fees under the EAJA, the amount of attorney fees to be awarded "shall be based upon prevailing market rates for the kind and quality of the services furnished, " except that attorney fees shall not exceed $125.00 per hour unless the Court determines that an increase in the cost of living or a "special factor"justifies a higher fee award. 28 U.S.C. § 2412(d)(2)(A). It has been recognized that the EAJA allows for an adjustment due to changes in the cost of living, though such a change is not absolutely required. Barber v. Sullivan, 751 F. Supp. 1542, 1544 (S.D. Ga. 1990) (citing Baker v. Bowen, 839 F.2d 1075, 1084 (5th Cir. 1988)). Baker is also cited for the proposition that attorney fee increases do not necessarily have to follow the cost of living index for a specific geographical area and that the decision as to whether attorney fees shall exceed the statutory cap rests entirely within the court's discretion. Id.
Two separate attorneys were involved in Plaintiff's litigation of this case, first at the district court and then at the court of appeals. Plaintiff's counsel requests an enhancement of the statutory fee rate of $125.00 per hour based upon the cost of living increases since Congress set the amount in March 1996 as part of the Contract with America Advancement Act of 1996, Pub. L. No. 104-121, §§ 231-33 as codified in 28 U.S.C. § 2412(d)(2)(A). Given the level of expertise of Plaintiff's counsel and this Court's knowledge of the prevailing market rates within the Jacksonville, Florida area, the Court finds an enhancement of the statutory rate, commensurate with inflation, is warranted. See Jean v. Nelson, 863 F.2d at 773-74 (). In computing the hourly rate adjustment for the cost of living increase, the Consumer Price Index is generally used for the year in which the services were performed. See Masonry Masters, Inc. v. Nelson, 105 F.3d 708, 710-13 (D.C. Cir. 1997); see also, Gates v. Barnhart, 325 F.Supp.2d 1342, 1345-48 (M.D. Fla. 2002).
In this instance, Plaintiff has requested attorney fees under the EAJA be paid at a rate of $172.85 per hour for services in 2008, $172.24 per hour for services in 2009 and $173.96 for services rendered in 2010. Upon review of the Consumer Price Index, as calculated by the Federal Reserve Bank of Minneapolis, the Court finds Plaintiff's counsel has overstated what would be a reasonable hourly fee in each of the years for which legal services were given. When factoring in the Consumer Price Index as a guide for Florida attorneys to be compensated under the EAJA, the Court finds $171.45 per hour for services in 2008, $170.89 per hour for services in 2009 and $173.76 per hour for legal services given in 2010 represent the upper end of reasonable hourly fees for these years.1In making this determination, the Court has considered not only the Consumer Price Index, but also the hourly rates that have been presented to this Court by attorneys within the Middle District of Florida for compensation under the EAJA during the years requested in this Petition. In the Court's experience, the prevailing market rate for attorneys litigating Social Security appeals in federal court does not exceed, and oftentimes is somewhat less than, the statutory rate plus an enhancement for inflation as shown by the Consumer Price Index.
The Supreme Court has clearly stated, "the most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).2 Thus, in conjunction with its determination of a reasonable hourly rate, the Courtmust determine the number of hours reasonably expended on the case. See Hensley v. Eckerhart, 461 U.S. at 434; Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 1301 (11th Cir. 1988). The total of 22.7 hours sought by Plaintiff's first attorney for representation before this Court falls squarely within the range of hours the Court typically sees expended in federal litigation of a Social Security appeal. However, the request for compensation of 62.6 hours (52.9 hours for legal representation at the Eleventh Circuit, 2.5 hours to prepare the Petition for the EAJA fees, and 7.2 hours for preparation of a motion to reply and a reply brief) made by Plaintiff's second attorney of record, appears, at first glance, to be extremely high.
Under the EAJA, the hours claimed by the plaintiff's counsel must have been rendered in service related to the civil action brought in federal court. See Watford v. Heckler, 765 F.2 1562, 1568 (11th Cir. 1985). In this case, there is no challenge that the number of hours expended were not related to the federal litigation. Having determined the Commissioner's position was not substantially justified in the case, the question for the Court lies in the claimed number of hours, which is far and above any claims heretofore submitted to the undersigned. In total, Plaintiff seeks eighty-five and three tenths (85.3) hours be paid for her...
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