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Deborah Standard Maerkel v. Commissioner of Social Security

United States District Court, D. Connecticut

January 6, 2020




         Deborah Standard Maerkel filed an application for social security disability insurance benefits in 2015. The Social Security Administration denied her application at various levels of review, so she filed this lawsuit challenging the decision of the Commissioner. See Doc. #1. In 2018, I ruled in favor of Maerkel and remanded her case to the Commissioner for further proceedings. See Doc. #28. Maerkel has moved for an award of attorney's fees under the Equal Access to Justice Act (“EAJA”). Although the Commissioner agrees that a fee award is appropriate, the Commissioner argues that Maerkel seeks compensation for an excessive number of hours expended by her attorneys. I agree in part, and for the reasons stated below will grant in part and deny in part Maerkel's motion for attorney's fees.


         A plaintiff like Maerkel who prevails in a civil case against the United States may seek an award of attorney's fees under the EAJA if the federal government's position is not “substantially justified.” 28 U.S.C. § 2412(d)(1)(A). Because neither party in this case has argued that the Commissioner's position was substantially justified, I will not dwell on this inquiry and instead focus on the question of what fee award is reasonable.

         Any fee award under the EAJA must be reasonable. See Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983). Reasonableness is a question of “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Id. at 433. In the Second Circuit, courts typically find that a routine social security case requires 20 to 40 hours of attorney time. See Nieves v. Berryhill, 2017 WL 2838076, at *1 (D. Conn. 2017). The specifics of a case will sometimes warrant a greater award, and to make that determination, courts weigh “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.” Vonaa v. Berryhill, 2019 WL 2206066, at *1 (D. Conn. 2019).

         In this case, Maerkel's counsel has requested a fee award for 73.2 hours of attorney time spent on the underlying case (including preparation of the initial EAJA application for fees), see Doc. #33-1 at 5, and a further 6.05 hours for preparing a reply brief to the Commissioner's opposition to the EAJA fee application, see Doc. #36-1 at 1.[1] This breaks down to a request for 56.7 hours in 2017 and 22.55 hours in 2018. The Commissioner opposes that total as unreasonable, and I agree with the Commissioner in part.

         Review of routine documents

         First, I will exclude some of the time expended by Maerkel's counsel reviewing standard court filings and emails. Her counsel recorded individual 0.1-hour time increments for, inter alia, reviewing CM/ECF notices of judge assignment, the Court's standard electronic filing order, docket entry corrections, and various scheduling orders. See Docs. #33-2 at 1-7; Doc. #36-1 at 1. “A reduction of time is warranted for review of standard court filings, particularly by an attorney with experience in social security cases.” Rivera v. Colvin, 2016 WL 1363574, at *2 (D. Conn. 2016); see also Downey v. Astrue, 2012 WL 1205824, at *12 (E.D. Cal. 2012) (explaining how “[s]ix-minute billing increments can result in a rounding-up that over-calculates the time actually spent on the tasks in total”). Here, Maerkel's counsel billed a total of 1.4 hours in 2017, Doc. #33-2 at 1-5, and 0.8 hours in 2018 in 0.1-hour increments for reviewing routine CM/ECF notices and scheduling documents, id. at 6-7. Acknowledging that there have been more than 30 (albeit brief) docket entries in this case to review, I find a reduction of 0.7 hours in 2017 and 0.3 hours in 2018 to be appropriate where, as here, Maerkel's counsel could not reasonably have spent six minutes reviewing each entry that was billed at ¶ 0.1-hour increment.

         Review of the record and drafting the initial brief

         Next the Commissioner argues that Maerkel's counsel expended an unreasonable amount of time on various preparatory work in litigating this case. In particular, the Commissioner takes issue with the “nearly 40 hours itemized for reviewing the record and drafting the initial brief alone.” Doc. #34 at 7; see also Doc. #33-2 at 1-3 (by the Court's calculations, identifying 34.4 hours expended in 2017 on “Review Record for potential FC claim;” “ODAR File re: Review Admin Record;” and various “draft brief” entries, including “Motion for Judgment, ” “Stipulation of Facts, ” “Med Chron[ology], ” numerous procedural aspects and ALJ findings such as “The Hearing Testimony” and “Severity of Depression, ” and “Proof read, ” but not including “draft brief” entries that also include “research”).

         I agree with the Commissioner. Although Maerkel appears to contend that the need to prepare a statement of facts was a novel and burdensome requirement that should apparently lead courts to routinely award more than 40 hours' worth of fees, see Docs. #33-1 at 4-5; #36 at 2, courts in this district have repeatedly reaffirmed the 20-40 hour standard for social security cases in recent years, even after the statement of facts requirement was imposed. See, e.g., Vonaa, 2019 WL 2206066, at *1; Yulfo-Reyes v. Berryhill, 2019 WL 582481, at *5 (D. Conn. 2019).

         Still, Maerkel's counsel argues that other circumstances of this case-such as the length of the record and not having represented Maerkel in administrative proceedings below-justify the time expended in reviewing the record and drafting the initial brief. Docs. #36 at 2-4; #33-1 at 4-5. But a 1, 187-page record, while long, is not unusually so for this Court. See, e.g., Doc. #21 to Garzon v. Berryhill, No. 3:18-CV-00799 (JAM) (D. Conn. 2018) (1, 729 pages); see also Yulfo-Reyes, 2019 WL 582481, at *4-*5 (no upward departure of the fee award for 2, 647-page transcript). Similarly, while it may have taken Maerkel's counsel some time to become familiar with her case, it is not unusual in this district for new counsel to step in for a social security appeal. See, e.g., Garzon v. Berryhill, 2019 WL 2171234, at *1 (D. Conn. 2019); Emerick v. Berryhill, 2018 WL 4300118, at *1 (D. Conn. 2018). I am not persuaded that the factors surrounding the preparation of this case merit the award of an unusually high number of hours.

         Of course, Maerkel's counsel did not actually spend more than 40 hours reviewing the record or drafting the opening brief. But to the extent that any social security case-such as this one-will require more work than simply reviewing the record and preparing an opening brief, using almost all of a typical case's 40-hour “budget” on these steps alone demonstrates a less than efficient use of time. Accordingly, I will exclude some of the 34.4 hours that Maerkel's counsel spent on reviewing the record and preparing Maerkel's initial brief.

         The Commissioner appears to argue that a fair indication of the excess hours spent at this stage is the time Maerkel's counsel spent on arguments that did not pertain to the basis for the Court's order remanding the decision of the Commissioner. See Doc. #34 at 6-7. Although a court may reduce an EAJA fee award when a plaintiff is unsuccessful on one of her claims for relief, see Bathrick v. Astrue, 2015 WL 3870268, at *6 (D. Conn. 2015), that is not the posture of this case. It is true that the Court's decision relied on relatively narrow errors in the ALJ's Step Four and Step Five analysis to conclude a remand was warranted-particularly relative to the broader claims of error in Maerkel's motion for judgment on the pleadings. Compare Doc. #28 at 5-9, with Doc. #16-1 at 12-31. But importantly, the Court's order remanding the Commissioner's decision did not find in favor of the Commissioner on any of Maerkel's claims of error, and instead instructed the ALJ on remand to “be sure to ...

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