Opinion
Civil Action No. CV-98-3728 (DGT)
April 7, 2000
Barry Simon, Esq., Simon Newman, Esqs., Attorney for Plaintiff, 97-45 Queens Blvd., Forest Hills, N.Y. 11374, (718) 459-2700.
Hon. Loretta E. Lynch, United States Attorney, Eastern District of New York, Attorney for Defendant, By: Scott Dunn, Esq., One Pierrepont Plaza, Brooklyn, N.Y. 11201, (718) 254-7000.
MEMORANDUM ORDER
Plaintiff requests an award of attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, based on an August 3, 1999 order remanding the matter pursuant to 42 U.S.C. § 405(g), sentence four. Plaintiff is seeking a total of $6,313.10 for 48.5 hours billed at a rate of $130.18 per hour. The Commissioner of Social Security ("Commissioner") does not challenge counsel's right to collect attorney's fees, but objects to the amount sought as excessive.
The EAJA was amended in 1996 to raise the presumptive fee rate from $75.00 per hour to $125.00. See Pub.L. No. 104-121, § 232, 110 Stat. 847, 863 (March 29, 1996). The Second Circuit has held that this base rate may be adjusted for cost of living increase by using the Consumer Price Index ("CPI") rate for general inflation. See Harris v. Sullivan, 968 F.2d 263 (2d Cir. 1992). Thus, plaintiff arrived at an hourly rate of $130.18 by dividing the CPI in the Northeast as of July 1999 (173.4) by the CPI in March 1996 (166.5) and multiplying that figure (1.0414) by the base fee rate of $125.00. (See Mem. Supp. ¶¶ 5-7.) The Commissioner has not objected to the calculation of the rate; therefore, this figure is accepted.
Background
Plaintiff, Marie Ferguson, applied for Social Security Disability benefits on August 10, 1993. (See R. at 8.) Ms. Ferguson alleged an inability to work due to low back and cervical impairments she attributes to a motor vehicle accident she was involved in on December 23, 1993. (See R. at 26.) After the Commissioner denied an award of benefits initially and upon reconsideration, (see R. at 69, 75), a hearing on Ms. Ferguson's claim was held before Administrative Law Judge Kenneth G. Levin ("ALJ") on October 28, 1996, (see R. at 30). Present at the hearing were Ms. Ferguson, her attorney, and a vocational expert. (See R. at 25, 39-55.)
Ms. Ferguson was not represented at the hearing by her current counsel. See R. at 25, 39-55.
In a written decision issued three days later (October 31, 1996), the ALJ found that while the medical evidence established Ms. Ferguson has "`severe' degenerative disc disease with mild L5/S1 radiculopathy," (R. at 28), her impairments do not equal any "listed impairment," see 20 C.F.R. § 404, subpt. P, app. 1, Pt. A. Further, the ALJ found that Ms. Ferguson retains the residual functional capacity to perform sedentary work, see 20 C.F.R. § 404.1567(a), and thus, is capable of performing her past relevant work as a computer analyst, (see R. at 29). In light of this finding, the ALJ denied Ms. Ferguson's application for disability benefits. (See id.) On April 23, 1998, the Appeals Council refused to review the ALJ's decision, (see R. at 3), making it the final determination of the Commissioner.
Ms. Ferguson appealed denial of her claim for disability benefits by filing a complaint in this court on May 21, 1998. Four months later, after reviewing the administrative record, the Commissioner contacted Ms. Ferguson's current counsel and offered to stipulate to a remand of this case for further administrative review. (See Mem. Law Opp'n Counsel's Req. Att'y's Fees at 2 [hereinafter Opp'n Mem.]; Reply Mem. at 6 (acknowledging that counsel has received many such offers to stipulate to remand)) Plaintiff rejected the Commissioner's offer. (See Opp'n Mem. at 2; Reply Mem. at 6.) Thus, on April 20, 1999, the Commissioner filed a motion for remand, which plaintiff responded to by filing a cross-motion for judgment on the pleadings.
At oral argument held August 3, 1999, this court explored what grounds existed for an outright reversal of the Commissioner's final determination. (See Tr. of Hr'g on Aug. 3, 1999 passim [hereinafter Tr.].) However, remand was determined to be a more appropriate disposition of the case. (See id. at 15-17; see also Ferguson v. Apfel, No. 98-CV-3728 (E.D.N.Y. Aug. 3, 1999) (remanding the case to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g))).
Discussion
The EAJA provides that attorney's fees and costs may be recovered by a "prevailing party" in "any civil action . . . against the United States," unless "the position of the United States was substantially justified or . . . special circumstances [exist which] make an award unjust." 28 U.S.C. § 2412(d)(1)(A). The Commissioner has apparently conceded that plaintiff is a prevailing party, that the position of the United States was not substantially justified, and that no special circumstances exist which would make an award of attorney's fees unjust. (See Opp'n Mem. at 2, 3, 4.) The Commissioner's sole contention is that the amount of attorney's fees sought by plaintiff is unreasonable.
When determining the proper compensation to award a prevailing party, a district court is to exercise its discretion in deciding how much time was "reasonably expended" on the case. See Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939 (1983) (internal quotation and citation omitted); Aston v. Secretary of Heath and Human Servs., 808 F.2d 9, 11 (2d Cir. 1986). The specific facts of each case determine what fee is appropriate. See Hensley, 461 U.S. at 429, 103 S.Ct. at 1937. One important factor to be examined is "the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Id. at 435, 103 S.Ct. at 1940. A close examination of an itemized bill is also warranted. Just as is true in the private sector, "billing judgment is an important component in fee setting. . . . Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority." Id. at 434, 103 S.Ct. at 1940 (internal quotation and citation omitted).
"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." Id.; see also Action on Smoking and Health v. Civil Aeronautics Bd., 724 F.2d 211, 220 (D.C. Cir. 1984). Courts in this jurisdiction have found that generally twenty to forty billable hours are "reasonably expended" in a Social Security disability benefits case. See, e.g., Cruz v. Apfel, 48 F. Supp.2d 226, 231 (E.D.N Y 1999); DiGennaro v. Bowen, 666 F. Supp. 426, 433 (E.D.N Y 1987) (citing cases). Here, plaintiff's claim for 48.5 hours exceeds the guideline range by 8.5 hours. However, the Commissioner is challenging the reasonableness of all thirty (30) hours plaintiff's counsel billed opposing the motion for remand. The Commissioner claims that "delaying the identical relief already available to plaintiff nearly one year earlier was [time] not reasonably expended." (Opp'n Mem. at 4.)
Detailed billing records provided by plaintiff indicate that approximately 19.5 hours were spent preparing opposition to the motion for remand; 6 hours were spent preparing for, traveling to, and participating in oral argument; 2.25 hours were spent in various telephone calls and correspondence; and 2.25 hours researching and writing a letter on a post-argument issue. (See Mem. Supp., Ex. A.)
As stated above, the reasonableness of a fee is a factual determination left to the discretion of a district court. See Hensley, 461 U.S. at 429, 103 S.Ct. at 1937. There is no legal or logical reason to replace this factual decision with a per se rule like the one advanced by the Commissioner here: namely, that every time a plaintiff rejects the Commissioner's offer to stipulate to a remand and then unsuccessfully opposes a motion for remand, counsel's time was unreasonably expended and fees for that time should not be recovered. As long as all relevant aspects of an EAJA claim are considered by the court, there is no justification for automatically striking the majority of hours claimed by counsel as a penalty for not agreeing to an offer of voluntary remand. However, when the particular facts of a case warrant it (e.g., when the arguments made for reversal are specious or meritless), reducing a claim for unreasonably expended billable hours in light of an offer to remand would be proper. See, e.g., Williams v. Bowen, No. 85C2653, 1987 WL 10559 (N.D. Ill. May 6, 1987) (plaintiff's rejection of the Secretary's offer to remand was unreasonable and made an EAJA award unjust)
In the instant case, the Commissioner moved for remand to give the ALJ an opportunity to clarify what medical evidence he relied on in finding Ms. Ferguson capable of performing sedentary work. (See R. at 27-28). This clarification was necessary because one of her treating physicians opined that she could stand and/or walk for less than two hours a day, (see R. at 103) a finding which is inconsistent with sedentary work, see 20 C.F.R. § 404.1567(a) (sedentary work involves, inter aria, standing and/or walking for up to two hours in an eight hour day). The ALJ's decision also ignored the opinion of another treating physician who characterized Ms. Ferguson as "disabled." (See R. at 113.) The Commissioner argued that remand was more appropriate than outright reversal because application of the correct legal principles to the record as it was did not "lead to only one conclusion." Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)
Conversely, plaintiff argued that the deficiencies acknowledged by the Commissioner warranted reversal, not remand. Additionally, plaintiff placed significant weight on the fact that the ALJ found Ms. Ferguson's testimony regarding her debilitating pain to be credible, (see R. at 28), but then discounted it as "not bourne out by the medical records," (see R. at 29). In light of Second Circuit authority which instructs that credible pain stemming from an established physical impairment may merit a finding of disability, see, e.g., Rivera v. Schweiker, 717 F.2d 719, 724-25 (2d Cir. 1983), plaintiff asserted that the evidence showing degenerative disc disease, (see, e.g., R. at 110), coupled with her credible pain testimony, was sufficient to find Ms. Ferguson disabled.
At oral argument, this court reviewed the salient medical evidence in the record, paying particular attention to the reports which revealed the severity of Ms. Ferguson's physical impairments and the level of pain those impairments could reasonably be expected to produce. (See Tr. at 8-9 (discussing MRI and EMG results, see R. at 110-11.).) While "degenerative disc disease" was evident in January of 1994 at the L4-5 and L5/S1 levels of Ms. Ferguson's spine, (see R. at 110), only mild radiculopathy without denervation was detected, (see R. at 111). Since the ALJ found her pain testimony credible, reversal may have been appropriate here if it was clear from the medical evidence that she was suffering from "a medically determinable impairment(s) that could reasonably be expected to produce [the pain she testified to]," 20 C.F.R. § 404.1529(c)(1). However, the evidence in the record was not complete as to whether Ms. Ferguson's physical conditions could "reasonably" be the cause of her pain. (See Tr. at 11, 12, 14-16.) Moreover, a potential psychological component to the pain was not fully explored at the administrative level. (See Tr. at 13, 14, 16; R. at 112-113.) These gaps in the record lead the court to conclude that a remand of the case for further administrative review was the appropriate course to follow. (See Tr. at 16-17.)
This summary of the district court proceedings reveals that plaintiff's arguments for reversal were not specious or meritless. Thus, all of the time spent opposing the Commissioner's motion to remand was not unreasonably expended. However, in light of the fact that this case did not present any extraordinarily complicated legal or factual issues, the above-average number hours sought by counsel in connection with this case is rightfully reduced to forty (40) hours, Additionally, the 2.25 hours billed for researching and writing a letter to the court on radiculopathy, after the Commissioner's motion for remand was granted and on counsel's own initiative, is not time properly charged to the Government under the EAJA. Therefore, the total number of hours reasonably billed by plaintiff in this case is reduced to 37.75.
Conclusion
For the reasons stated above, plaintiff's motion for attorney's fees under the EAJA is granted in a total amount of $4,914.30 (37.75 hours billed at $130.18 per hour).
SO ORDERED: