Richardson v. Berryhill

          RULING ON MOTION FOR AWARD OF ATTORNEY'S FEES

          HOLLY B. FITZSIMMONS UNITED STATES MAGISTRATE JUDGE

         On June 29, 2012, the plaintiff applied for Supplemental Social Security (“SSI”) benefits, claiming that she had been disabled since June 29, 2012. [Tr. 24]. After a hearing, an ALJ, the ALJ denied plaintiff benefits on April 25, 2014. [Tr. 47-80]. Having exhausted her administrative remedies, the plaintiff filed the Complaint in this case on October 5, 2015. [Doc. #1]. On December 14, 2015, the Commissioner filed an Answer and the official transcript. [Doc. #13]. On April 8, 2016, the plaintiff filed a Motion for Reversal and/or Remand, together with a memorandum in support. [Doc. #18], to which the Commissioner responded with a Motion to Affirm the ALJ's Decision on May 20, 2016. [Doc. #21]. Plaintiff filed a reply brief on June 6, 2016. [Doc. #24]. Judge Covello entered an order on May 23, 2017, directing plaintiff to file medical facts in chronological order and in narrative form in compliance with the Scheduling Order dated October 5, 2015. [Doc. #26 (citing Doc. #5)]. Plaintiff filed a Statement of Medical Facts on June 9, 2017. [Doc. #27]. Defendant filed a Medical Statement of Facts on July 5, 2017. [Doc. #28]. On December 21, 2017, the parties consented to the jurisdiction of a United States Magistrate Judge and the case was reassigned to the undersigned. [Doc. #31]. A ruling granting plaintiff's motion to reverse and remand the case was filed on March 27, 2018, [Doc. #32], and Judgment entered on March 30, 2018. [Doc. #33].

         On May 25, 2018, plaintiff timely moved for an award of attorney's fees, filing an affidavit of Attorney Michael F. Magistrali, a copy of the Fee Agreement and time sheets from Attorney Magistrali and Attorney Nancy Meserow.^[1] [Doc. #34]. The defendant filed a brief in opposition to the motion on June 7, 2018 [Doc. #35].

         Plaintiff seeks fees in the amount of $18, 583.70, consisting of 92.45 hours of attorney time plus 3.95 hours of clerical time, as follows:

WORK PERFORMED BY	HOURS	RATE	TOTAL
Atty. Magistrali	11.35	$196.10	$ 2, 225.74
Atty. Meserow	81.10	$196.10	$15, 903.71
Clerical	3.95	$115.00	$ 454.25
TOTAL	96.40		$18, 583.70

         For the reasons set forth below, the plaintiff's Motion for Attorney Fees [Doc. #34] is GRANTED in part and DENIED in part.

         A. LEGAL STANDARD

         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). Defendant does not contest the plaintiff's status as a prevailing party in this matter, or the hourly rate requested by counsel. Rather, the defendant objects to the number of hours claimed as excessive.

         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”).^[2] 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).

         B. DISCUSSION

         After reviewing the time records submitted by Richardson's attorneys, the Court agrees with the Commissioner that some reduction in the time awarded is justified. Richardson's request for 96.4 hours exceeds the twenty to forty hours that courts in the Second Circuit normally find routine Social Security cases to require. Dupuy v. Colvin, No. 3:14-CV-01430(SALM), 2015 WL 5304181, at *2 (D. Conn. Sept. 9, 2015). Motion, Memorandum and Reply Brief The Commissioner argues that “[t]his case did not involve any issues of first impression, unique or extraordinary facts or procedural complications ... [and] the medical impairments at issue were common to many disability appeals involving mental impairments, migraine headaches and obesity.” [Doc. #35 at 4]. The Court agrees. Here, the administrative record is 1, 225 pages long, and the factual and legal issues were not particularly novel or difficult, thereby justifying a reduction of hours.

         Moreover, reduction is warranted to account for the experience of counsel and apparent efficiencies relating to the use of research and writing from prior motions.^[3] Rivera v. Colvin, No. 3:14-CV-1012(WIG), 2016 WL 1363574, at *2 (D. Conn. Apr. 6, 2016)(“The 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 counsel represented the claimant during the administrative proceedings.”)(citing Seggerman v. Colvin, No. 3:11CV1219(JBA), 2014 WL 2534876, at *3 (D. Conn. June 5, 2014)). Thus the Court will reduce the amount of time that Attorney Meserow claims for reviewing the record, performing research and drafting the Motion to Reverse and/or Remand from 64.9 hours to 32 hours. [Doc. #34-1 Attach. C (Meserow Time Sheet) entries 1/6/16, 3/30/16-4/6/16]. In making this finding, the Court is mindful that counsel needed additional time to familiarize themselves with the administrative record (1, 225 pages) as they did not represent Ms. Richardson at the administrative level. The Court denies Attorney Magistrali's request for time to review Attorney Meserow's work in light of her considerable expertise and experience in Social Security disability cases. [Magistrali Aff. ¶6-7]. Further, Attorney Meserow's detailed time records show that she performed the bulk of the work over eight days from March 30 through April 6, 2016.

         The Court also disallows plaintiff's reimbursement request for 16.2 hours for Attorney Meserow to review defendant's Motion to Affirm and to research and write a 13 page reply brief. [Doc. #34-1 Attach. C entries 6/2/16, 6/3/16, 6/9/17]. As counsel is aware, reply briefs are not required and the issues presented ...