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Roman v. Colvin

United States District Court, D. Connecticut

December 28, 2015

YESENIA ROMAN
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY

RULING ON PLAINTIFF’S APPLICATION FOR AN AWARD OF ATTORNEY’S FEES AND EXPENSES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT [DOC. #13]

HON. SARAH A. L. MERRIAM, UNITED STATES MAGISTRATE JUDGE.

Plaintiff Yesenia Roman (“plaintiff”) filed an application for disability insurance benefits (“DIB”) on November 17, 2011, alleging disability beginning on August 17, 2011. (Certified Transcript of the Record, Compiled on August 7, 2015 (hereinafter “Tr.”) 266-71). After a hearing before an ALJ, the ALJ denied plaintiff benefits on May 22, 2013. (Tr. 16-41). After exhausting her administrative remedies, plaintiff filed the Complaint in this case on June 15, 2015. [Doc. #1]. On August 26, 2015, the Commissioner filed her Answer and the official transcript. [Doc. #7]. On August 27, 2015, the Court entered a scheduling order requiring that plaintiff file her motion to reverse and/or remand by October 26, 2015. [Doc. #8]. On October 26, 2015, defendant filed a consent motion for remand. [Doc. #10]. The consent motion recognized that plaintiff should be given a new hearing and the opportunity to introduce new evidence, and called upon the ALJ to, inter alia, “evaluate all medical opinion evidence and explain the weight accorded to each opinion.” [Doc. #10 at 1]. The undersigned granted the consent motion on October 27, 2015 [Doc. #11], and judgment was entered on October 29, 2015. [Doc. #12].

On November 20, 2015, plaintiff filed a motion for attorney's fees together with a memorandum in support, affidavits, and time sheets. [Doc. #13]. Defendant filed a brief in opposition to the motion on December 1, 2015 [Doc. #14].

For the reasons set forth herein, plaintiff's Application for an Award of Attorney's Fees and Expenses Pursuant to the Equal Access to Justice Act [Doc. #13] is GRANTED, in part, in the amount of $4, 615.57 in fees and $425.08 in costs for a total award of $5, 040.65.

DISCUSSION

A party who prevails in a civil action against the United States may seek an award of fees and costs under the Equal Access to Justice Act (“EAJA” or the “Act”), 28 U.S.C. §2412, the purpose of which is “to eliminate for the average person the financial disincentive to challenging unreasonable government actions.” Commissioner, I.N.S. v. Jean, 496 U.S. 154, 163 (1990) (footnote & citation omitted). In order for an award of attorney's fees to enter, this Court must find (1) that plaintiff is a prevailing party, (2) that the Commissioner's position was without substantial justification, (3) that no special circumstances exist that would make an award unjust, and (4) that the fee petition was filed within thirty days of final judgment. 28 U.S.C. §2412(d)(1)(B).

In her motion, plaintiff seeks fees in the amount of $5, 119.38, consisting of the following:

WORK PERFORMED BY

HOURS

RATE

TOTAL

Atty. Zimberlin

10.8

$196.10

$2, 117.88

Paralegal

1.3

$115.00

$149.50

Law Clerk

24.8

$115.00

$2, 852.00

Defendant does not contest plaintiff's status as a prevailing party in this matter, or the hourly rates used by counsel. Rather, defendant specifically objects to the number of hours claimed for counsel's “time spent negotiating her initial fee request and preparing and filing her EAJA motion[.]” [Doc. #14 at 3] .

It is plaintiff's burden to establish entitlement to a fee award, and the Court has the discretion to determine what fee is “reasonable.” Hensley v. Eckerhart, 461 U.S. 424, 433, 437 (1983) (interpreting 42 U.S.C. §1988, which allows a “prevailing party” to recover from “a reasonable attorney's fee as part of the costs”).[1] This Court has a duty to review plaintiff's itemized time log to determine the reasonableness of the hours requested and to exclude hours “that are excessive, redundant, or otherwise unnecessary[.]” Id. at 434. “Determining a 'reasonable attorney's fee' is a matter that is committed to the sound discretion of a trial judge.” J.O. v. Astrue, No. 3:11CV1768(DFM), 2014 WL 1031666, at *1 (D. Conn. Mar. 14, 2014) (quoting Perdue v. Kenny A., 559 U.S. 542, 558 (2010)).

“Courts throughout the Second Circuit have consistently found that routine Social Security cases require, on average, between [twenty] and [forty] hours of attorney time to prosecute.” Poulin v. Astrue, No. 3:10CV1930(JBA)(JGM), 2012 WL 264579, at *3 (D. Conn. Jan. 27, 2012)(citations & internal quotations omitted); Cobb v. Astrue, No. 3:08CV1130(MRK)(WIG), 2009 WL 2940205, at *3 (D. Conn. Sept. 2, 2009). Notably, the case law finding that twenty to forty hours represents an average necessary investment of time pre-dates the adoption in this District of a new practice requiring plaintiff to provide a detailed medical chronology, with citations to the record, in the motion for reversal or remand.

Here, the Court finds that plaintiff has satisfied the requirements of 28 U.S.C. §2412(d)(1)(B), and that an award of fees may enter. Specifically, the Court finds, absent objection, that: (1) plaintiff is a prevailing party in light of the Court ordering a remand of this matter for further administrative proceedings; (2) the Commissioner's position was without substantial justification; (3) on the current record, no special circumstances exist that would make an award unjust; and (4) the fee petition was filed within thirty days of final judgment. 28 U.S.C. §2412(d)(1)(B). The Court next turns to the reasonableness of the fees sought.

In this case, plaintiff's counsel seeks reimbursement for a total of 10.80 hours of attorney time plus 26.10 hours of law clerk and paralegal time. [Doc. #13-1 at 5]. Defendant challenges only the amount of time billed in connection with plaintiff's EAJA application.

Although defendant does not challenge the hours billed that are not related to the EAJA application, the Court has nevertheless carefully examined the specific billing entries that are not related to the EAJA application (totaling 33.10 hours) and finds that the majority of the fees sought are reasonable in light of length of the administrative record (1, 904 pages), that Attorney Zimberlin represented plaintiff at the administrative level (Tr. 62), and that Attorney Zimberlin enlisted a law clerk to draft a medical chronology, which comprised the bulk of the work on the file. Cf. Rodriguez v. Astrue, No. 3:08CV154(JCH)(HBF), 2009 WL 6319262, at *3 (D. Conn. Sept. 3, 2009) (“Relevant factors to weigh include the size of the administrative record, the complexity of the factual and legal issues involved, counsel's experience, and whether ...


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