Tenhove v. Colvin

• Decision Date: 24 July 2013
• Docket Number: Case No. 12-C-0627
• Citation: Tenhove v. Colvin, Case No. 12-C-0627 (E.D. Wis. Jul 24, 2013)
• Parties: BOBBIE JEAN TENHOVE Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

BOBBIE JEAN TENHOVEPlaintiff,

v.CAROLYN W. COLVIN, Acting Commissioner of the Social Security AdministrationDefendant.

Case No. 12-C-0627

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

Dated: July 24, 2013

DECISION AND ORDER

On February 26, 2013, I reversed the Acting Commissioner's decision denying plaintiffBobbie Jean Tenhove's application for social security disability benefits, remanding the matter for further proceedings under 42 U.S.C. § 405(g), sentence four.On May 10, 2013, plaintiff filed a motion for an award of attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412.

Under the EAJA, the prevailing party in a civil suit against the United States may on timely application obtain attorney's fees if the government's position was not "substantially justified" and no "special circumstances" would make an award unjust.See28 U.S.C. § 2412(d)(1);Stewart v. Astrue, 561 F.3d 679, 683(7th Cir.2009).Because I remanded the matter pursuant to § 405(g), sentence four, and directed that judgment be entered in her favor, plaintiff is the prevailing party.SeeShalala v. Schaefer, 509 U.S. 292, 300-02(1993).Plaintiff's motion is timely, and the Commissioner concedes that her position was not substantially justified.

The Commissioner does contest the amount of plaintiff's request, however.A litigantseeking EAJA fees must demonstrate that her request is reasonable, both as to the rate and the number of hours requested, see, e.g., Lechner v. Barnhart, 330 F. Supp. 2d 1005, 1011(E.D. Wis.2004)(citingHensley v. Eckerhart, 461 U .S. 424, 437 (1983);Hanrahan v. Shalala, 831 F. Supp. 1440, 1450(E.D. Wis.1993)), and various statutory and judicially-created rules permit the district court to limit fees awarded to a prevailing party, Uphill v. Barnhart, 271 F. Supp. 2d 1086, 1091 n.5(E.D. Wis.2003).For instance, the court may decline to award fees where special circumstances would make the award "unjust."The case law and legislative history suggest that equitable considerations should inform a court's decision on this issue.Id.Section 2412(d)(1)(C) of the EAJA further provides that the court may reduce or deny fees "to the extent that the prevailing party . . . engaged in conduct which unduly and unreasonably protracted the final resolution of the matter in controversy."Finally, the Supreme Court in Hensley, 461 U.S. at 433-36, indicated that district courts may exclude from the fee calculation hours that were not reasonably expended.

In the present case, the Commissioner relies on Hensley's reasonableness standard and the "special circumstances" provision of the EAJA in specifically seeking to excise two blocks of time.First, the Commissioner seeks to deduct 1.1 hours plaintiff's counsel spent requesting extensions of time to file briefs.Second, the Commissioner seeks to deduct 11.2 hours counsel spent on the merits stage reply brief responding to the Commissioner's charge that plaintiff misstated the applicable standard of review in her main brief.¹

1.Extensions of Time

Time spent obtaining extensions may be excised, see, e.g., Burr v. Bowen, 782 F. Supp. 1285, 1290(N.D. Ill.1992), and in this caseplaintiff agrees to trim $147.90 for time spent on motions to extend the merits stage reply brief.(R. 35at 1-2.)However, the Commissioner seeks to exclude time spent on all extensions.On September 21, 2012, counsel spent .3 hours requesting an extension on plaintiff's main brief; on September 24, 2012, she spent .1 hours reviewing my order granting the extension.Shebills this time at a rate of $185.78/hour.On January 4, 2013, counsel spent .3 hours requesting an extension on her reply brief; on January 7, 2013, she spent .1 hours reviewing the order granting this request;² on January 11, 2013, she spent .3 hours requesting a second extension on the reply brief; and on January 14, 2013, she spent .1 hours reviewing the order granting the second extension.Shebills this time at a rate of $184.87/hour.Although time spent on extensions is not automatically or even presumptively excludable, see, e.g., Samuel v. Barnhart, 316 F. Supp. 2d 768, 779-80(E.D. Wis.2004), because counsel makes no effort to defend the multiple extensions she received in this case I will excise this time: (.4 x 185.78 = $74.41) + (.8 x 184.87 = 147.90) = $222.21.

2.Reply Brief/Standard of Review

At the merits stage, the Commissioner argued that plaintiff in her main brief misstated the applicable standard of review in five respects.About ½ of plaintiff's merits stage reply brief was devoted to responding to this criticism.(SeeR. 27at 1-6.)However, I did not address the issue in my merits decision, finding it unnecessary to do so.

In her EAJA response, the Commissioner argues that plaintiff's counsel should not be compensated for time spent defending her misstatements.However, the 11.2 hours the Commissioner seeks to exclude represents all of the time counsel spent on the reply brief, not just the standard of review issue.The Commissioner contends that counsel's time logs and declarations state that counsel spent these 11.2 hours responding to the standard of review argument.On review of the billing statement, I cannot agree.

On January 3, 2013, counsel spent 3.2 hours researching the standard of review challenge.On January 7, 2013, counsel spent 2.0 hours conducting research for the reply brief.³On January 17, 2013, counsel spent 3.1 hours drafting the reply, and on January 18, 2013, she spent 2.8 hours finalizing and filing the reply brief.Thus, of this 11.1 hours, just 3.2 hours was, per the billing record, specifically dedicated to the standard of review issue.The Commissioner notes that in her January 4 and 11, 2013extension requests, counsel indicated that she needed more time to research the standard of review issue.(SeeR. 22at 1¶ 3;R. 25at 1¶ 3.)However, counsel also justified the first extension by noting that she had taken several days of vacation and that she had to perform extensive work for a ward for whom she was guardian (R. 22at 1¶¶4-5), and the second extension by citing illness (R. 25at 1¶ 4).Thus, while it is true that counsel spent 2.0 hours on research on January 7, 2013, and then a total of 5.9 hours on January 17 and 18, 2013, drafting the reply brief, I cannot assume that all of that time was devoted to the standard of review issue.Counsel also discussed RFC and credibility issues in the merits stage reply brief.(R. 27at 6-10.)The Commissioner fails tootherwise explain why, even assuming that counsel misstated the standard of review in some respects, counsel should lose all of her time spent on the reply brief.

In any event, the Commissioner overstates the extent of counsel's errors.It is true that counsel failed to provide a pinpoint cite for INS v. Elias-Zacarias, 502 U. S. 478(1992),⁴ and may have garbled the holding of that case.(SeeR. 15at 16.)Worse, she failed to advise the court that it was the dissenting judge in Bledsoe v. Richardson, 469 F.2d 1288, 1292(7th Cir.1972) who stated that "the Social Security Act should be liberally construed in favor of disability and the intent is inclusion rather than exclusion."(R. 15at 16.)Counsel's attribution of "the error to repetitive typing of the Standard of Review which resulted in omitting the fact it was a dissenting opinion"(R. 27at 3) is unsatisfying.Counsel also admitted that no Seventh Circuit (majority) decision construes the Act in this fashion.(R. 27at 3.)And as the Commissioner notes in her EAJA response, the Sixth Circuit, which did endorse such a construction of the Act decades ago, see, e.g., Polly v. Gardner, 364 F.2d 969, 974(6th Cir.1966), has since backed away from it, see, e.g., Smith v. Chater, 99 F.3d 780, 781 n.2(6th Cir.1996).Counsel should be more careful in her drafting.

However, I cannot criticize counsel for her other citations on the standard of review issue.Courts in this circuit have cited Binion ex rel. Binion v. Chater, 108 F.3d 780, 782(7th Cir.1997) for the proposition that if the ALJ commits an error of law reversal is requiredregardless of the volume of evidence in support of the factual findings, without specifically limiting that statement to the ALJ's application of state law rather than disability regulations.See, e.g., McCollum v. Astrue, No. 07-CV-1016, 2012 WL 4760722, at *4(E.D. Wis.Oct. 5, 2012)(Stadtmueller, J.);Freeman v. Astrue, 816 F. Supp. 2d 611, 615(E.D. Wis.2011)(Clevert, J.);Haase v. Astrue, No. 09-C-1084, 2010 WL 3418250, at *2(E.D. Wis.Aug. 27, 2010)(Griesbach, J.);Ramos v. Astrue, 674 F. Supp. 2d 1076. 1080 (E.D. Wis. 2009)(Adelman, J.);see alsoRobinson v. Astrue, 667 F. Supp. 2d 834, 840(N.D. Ill.2009).Likewise, courts have cited Prince v. Sullivan, 933 F.2d 598, 602(7th Cir.1991) for the proposition that the ALJ may commit legal error if he fails to comply with the SSA's regulations and rulings.See, e.g., Mathes v. Astrue, No. 10-C-0940, 2012 WL 1108649, at *2(E.D. Wis.Mar. 31, 2012);Emanuele v. Astrue, 803 F. Supp. 2d 959, 961(E.D. Wis.2011);Borth v. Commissioner of Social Security, No. 08-cv-1352, 2010 WL 786007, at *7(C.D. Ill.March 4, 2010);Freeman, 816 F. Supp. 2d at 615;Brown v. Barnhart, 298 F. Supp. 2d 773, 779(E.D. Wis.2003).Finally, courts have cited Rohan v. Chater, 98 F.3d 966, 971(7th Cir.1996), for the proposition that the ALJ's decision must demonstrate the path of his reasoning, and the evidence must lead logically to his conclusion.See, e.g., Dykes v. Astrue, No. 1:12-cv-00370, 2013 WL 125164, at *4(S.D. Ind.Jan. 8, 2013);Plumb v. Astrue, No. 4:10-CV-6, 2011 WL 3610647, at *2(N.D. Ind.Aug. 16, 2011);Varga v. Astrue, No. 10-C-0454, 2011 WL 442268, at *9(E.D. Wis.Feb. 2, 2011);Ferreira v. Astrue, No. 08-C-0523, 2010 WL 3062644, at *3(E.D. Wis.July 30, 2010);Baker ex rel. Baker v. Barnhart, 410 F. Supp. 2d 757, 761(E.D. Wis.2005)....