Opinion
21 Civ. 2030 (KMK) (AEK)
05-31-2023
SANDRA JIMENEZ, on behalf of D.S.J., a minor, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
HONORABLE KENNETH M. KARAS, U.S.D.J
REPORT AND RECOMMENDATION
ANDREW E. KRAUSE, UNITED STATES MAGISTRATE JUDGE
Plaintiff Sandra Jimenez, on behalf of her minor son D.S.J., brought this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of Kilolo Kijakazi, the Acting Commissioner of Social Security (the “Commissioner”), which denied her son's application for child Supplemental Security Income (“SSI”). ECF No. 1. Currently before the Court is Plaintiff's motion seeking an award of $13,087.00 pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. ECF No. 43; see also ECF No. 52. For the reasons set forth below, I respectfully recommend that Plaintiff's motion for attorney's fees be GRANTED.
BACKGROUND
On February 14, 2019, Ms. Jimenez filed a claim for SSI on behalf of her minor child, D.S.J. ECF No. 15 at 11. The Social Security Administration (the “SSA”) denied the claim on May 6, 2019, and the claim was again denied after reconsideration on September 23, 2019. Id. at 11, 73-76. Plaintiff requested a hearing before an administrative law judge (“ALJ”), id. at 82-88, and on May 27, 2020, ALJ Mark Solomon held a hearing, id. at 11. On June 19, 2020, ALJ Solomon issued a decision finding that D.S.J. was not disabled within the meaning of the Social Security Act. Id. at 11-21. Plaintiff subsequently filed a request for review of that decision with the SSA's Appeals Council, which was denied on December 11, 2020. Id. at 1-5.
Plaintiff commenced this action pro se on February 9, 2021. ECF No. 1. In accordance with a court order, see ECF No. 3, the Commissioner filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure on November 23, 2021, ECF Nos. 21, 22. Plaintiff, by then represented by counsel, filed a cross-motion for judgment on the pleadings on May 23, 2022. ECF Nos. 33-35. On August 18, 2022, the undersigned issued a report and recommendation recommending that Plaintiff's motion be granted, the Commissioner's motion be denied, and that this matter be remanded to the SSA for further proceedings. ECF No. 40. Your Honor adopted the report and recommendation in its entirety, and judgment subsequently was entered in favor of Plaintiff on September 7, 2022. ECF Nos. 41, 42.
On November 30, 2022, Plaintiff filed a motion for attorney's fees pursuant to the EAJA. ECF Nos. 44 (“Baker Aff.”), 45 (“Pl.'s Mem.”). The Commissioner filed her opposition on January 23, 2023. ECF No. 50 (“Def.'s Opp.”). Plaintiff filed a reply, along with an additional affirmation in support, on February 6, 2023. ECF No. 51 (“Pl.'s Reply”), 52 (“Baker Reply Aff.”).
DISCUSSION
I. The EAJA
“The EAJA provides that ‘a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . . brought by or against the United States . . . unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.'” Criscitello v. Kijakazi, No. 21-1222-cv, 2022 WL 1510707, at *1 (2d Cir. May 13, 2022) (summary order) (quoting 28 U.S.C. § 2412(d)(1)(A)). Eligibility for an EAJA fee award in any civil action requires: “(1) that the claimant be a ‘prevailing party'; (2) that the Government's position was not ‘substantially justified'; (3) that no ‘special circumstances make an award unjust'; and, (4) pursuant to 28 U.S.C. § 2412(d)(1)(B), that any fee application be submitted to the court within 30 days of final judgment in the action and be supported by an itemized statement.” Comm'r, Immigr. & Naturalization Serv. v. Jean, 496 U.S. 154, 158 (1990) (quoting 28 U.S.C. § 2412(d)(1)(A)); see Gomez-Beleno v. Holder, 644 F.3d 139, 144 (2d Cir. 2011). EAJA fees are determined by examining the amount of time expended on the litigation and the attorney's hourly rate, which is capped by statute. See Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002); 28 U.S.C. § 2412(d)(2)(A). A trial court has “broad discretion” in determining what constitutes a reasonable award of attorney's fees under the EAJA. See Aston v. Sec'y of Health & Hum. Servs., 808 F.2d 9, 11 (2d Cir. 1986).
II. Analysis
There is no dispute that Plaintiff was the prevailing party in this matter and that her fee application was timely filed, and the Commissioner has not argued that her position was substantially justified or that there are any special circumstances here that would make an EAJA award unjust. Instead, the Commissioner contends only that the amount of time that Plaintiff's counsel, James M. Baker, Esq., spent on this matter was unreasonably high given that the case involved “relatively straightforward and common legal arguments,” Mr. Baker is highly experienced, and the administrative record is of “modest length.” Def.'s Opp. 4-5.
Under the EAJA, a plaintiff receiving a remand to an administrative agency is considered to be a prevailing party. See Shalala v. Schaefer, 509 U.S. 292, 302 (1993).
For purposes of the EAJA, the 30-day window within which to file a fee application begins to run after the expiration of the deadline for taking an appeal from the district court judgment. See Melkonyan v. Sullivan, 501 U.S. 89, 96 (1991). Here, the deadline to file an appeal was 60 days after the date the judgment was enteredi.e., November 6, 2022, see Fed. R. App. P. 4(a)(1)(B)(ii)-and Plaintiff filed her motion for attorney's fees within the 30-day period that followed.
As an initial matter, the Court finds that Mr. Baker's claimed hourly rate of $230.00 is reasonable. “Determining counsel's hourly rate under the EAJA involves applying a cost-of-living adjustment, as measured by the Consumer Price Index (‘CPI'), to the statutory ceiling of $125.00 per hour set by the EAJA on March 29, 1996.” Jill A. o/b/o J.S.E.W. v. Kijakazi, No. 20-cv-0727L, 2022 WL 170406, at *1 (W.D.N.Y. Jan. 18, 2022) (quotation marks omitted); see Santiago v. Comm'r of Soc. Sec., No. 19-cv-4001 (KPF) (KNF), 2020 WL 7335310, at *3 (S.D.N.Y. Dec. 14, 2020). Because the CPI fluctuates, appropriate CPI-adjusted rates will vary from year to year. See Garcia v. Comm'r of Soc. Sec., No. 20-cv-7201 (AEK), 2022 WL 1684280, at *1-2 (S.D.N.Y. May 26, 2022); Cassandra H. v. Comm'r of Soc. Sec., No. 20-cv-6776 (EAW), 2023 WL 2983685, at *5 (W.D.N.Y. Apr. 18, 2023). “The correct CPI-adjusted hourly rate for the entire year 2022 is $234.95” and the CPI-adjusted hourly rate for early 2023 is slightly higher. Cassandra H., 2023 WL 2983685, at *5 & n.5. Accordingly, Mr. Baker's requested rate for the work he performed in 2022 and early 2023 is lower than the permissible CPI-adjusted rates for those time periods, and is a reasonable rate for the work performed in this case.
The Commissioner does not contest the reasonableness of the proposed hourly rate.
Turning to the work performed, Mr. Baker spent 48.8 hours on this matter between March 2022 and August 2022, and an additional 8.1 hours briefing the instant fee motion (4.2 hours for the initial submission and 3.9 hours for the reply submission). See Baker Aff. ¶ 5; Baker Reply Aff. ¶ 3. In total, Mr. Baker is seeking an award of $13,087.00 for 56.9 hours of work. See Baker Reply Aff. ¶¶ 2-4. The Commissioner argues that counsel's award should be reduced by 8.8 hours for work performed on the merits of Plaintiff's case, and by 0.7 hours for work performed on the fee application. Def.'s Opp. at 5.
While courts in this Circuit have found that between 20 and 40 hours represents a reasonable expenditure of time to litigate an appeal of a denial of benefits by the SSA, courts have “not hesitated to award attorney's fees well in excess of the routine twenty to forty hours where the facts of the specific case warrant such an award.” Price v. Comm'r of Soc. Sec., No. 19-cv-8499 (JPO), 2022 WL 1567463, at *1 (S.D.N.Y. May 18, 2022) (cleaned up). “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.” Id. (quotation marks omitted); see, e.g., Afriyie o/b/o D.K.B. v. Comm'r of Soc. Sec., No. 19-cv-4635 (JLC), 2021 WL 1178579, at *4-5 (S.D.N.Y. Mar. 30, 2021) (finding 69.4 hours reasonable in case brought on behalf of child applicant where counsel did not represent the plaintiff in prior proceedings and complex legal and factual issued required an oversized brief); Daily v. Comm'r of Soc. Sec., No. 18-cv-1080 (AT) (KNF), 2020 WL 1322528, at *3 (S.D.N.Y. Mar. 19, 2020) (finding 68.3 hours reasonable in case where counsel did not represent the plaintiff at the administrative level and Commissioner conceded the 903-page record was “unusually voluminous”); Molina o/b/o M.W.M. v. Berryhill, No. 15-cv-8088 (JLC), 2017 WL 3437572, at *2-3 (S.D.N.Y. Aug. 11, 2017) (finding 80.2 hours reasonable in case brought on behalf of child applicant where “two of the three issues . . . were complex” even though administrative record was only 330 pages).
Plaintiff argues that the 20-40 hour “benchmark” that is often discussed by courts in this Circuit “may be something of a fluke based on the first five cases decided in the earliest days of the EAJA,” and urges the Court to disregard the benchmark as one “of limited value.” Pl.'s Reply at 2-4, 8-9. Because the Court has determined that the time counsel spent on this case was reasonable, however, it is not necessary to reach the question of whether 20-40 hours is a generally appropriate benchmark for what constitutes a reasonable expenditure of time for a plaintiff's attorney to litigate a Social Security appeal.
There are multiple factors here that warranted Mr. Baker's expenditure of 48.8 hours on the merits phase of this matter. Plaintiff's motion for judgment on the pleadings included discussions of numerous complicated issues counsel identified based on the ALJ's decision, including that the ALJ erred in assessing D.S.J.'s abilities in five of the six domains of childhood functioning. See ECF No. 40 at 11-26. Plaintiff's arguments included analyses of the impact of test scores on the various domains, and required counsel to carefully comb through the administrative record to identify an error in the ALJ's interpretation of a particular test score. See id. As a further indication of the complexity of this matter, both the Commissioner and Plaintiff sought and were granted permission to file oversized briefs in order to fully explore the issues in this case, see ECF No. 32, and the undersigned issued a 34-page report and recommendation, ECF No. 40. Given that this case involved factual and legal issues that were more complicated than the typical Social Security appeal, Plaintiff's counsel's expenditure of time beyond the typical 20-40 hour range was reasonable and appropriate. See Molina, 2017 WL 3437572, at *3 (explaining that issues similar to those raised by counsel here were “complex,” justifying the expenditure of more than 40 hours).
Additionally, because Mr. Baker did not represent Plaintiff at the administrative level, it understandably took additional time for him to become familiar with the 621-page administrative record, identify issues, and prepare a brief. See Baker Aff. ¶¶ 6-7; Afriyie, 2021 WL 1178579, at *4-5. And even though counsel has significant experience litigating Social Security appeals in federal court, “courts in this District have rejected the notion that experience alone justifies a reduction in the hours requested.” Santiago v. Comm'r of Soc. Sec., No. 20-cv-11104 (VF), 2023 WL 21853, at *4 (S.D.N.Y. Jan. 3, 2023); see also, e.g., Nieves v. Acting Comm'r of Soc. Sec., No. 20-cv-4179 (JLC), 2023 WL 154556, at *2 (S.D.N.Y. Jan. 11, 2023) (observing that while counsel's “extensive knowledge of social security law undoubtedly gives him an ability to prepare motion papers more expeditiously than a less experienced lawyer, the task at hand still required him to carefully consider the application of law to the testimony and documentary evidence in an extensive record”); Daily, 2020 WL 1322528, at *3 (refusing to penalize counsel for experience in fee application).
Moreover, while the Commissioner contends that the hours Plaintiff's counsel spent on the merits portion of the case were excessive, she fails to identify any particular task at that stage that purportedly took more time than necessary. A “request for a blanket reduction of fees without identifying specific time expended on the case that is objectionable is inappropriate.” Holman v. Comm'r of Soc. Sec., No. 19-cv-4393 (PGG) (KHP), 2021 WL 9036256, at *3 (S.D.N.Y. July 19, 2021) (collecting cases), adopted by 2022 WL 2763816 (S.D.N.Y. July 15, 2022); cf. Rosario v. Comm'r of Soc. Sec., No. 21-cv-3811 (JCM), 2022 WL 17669939, at *4-5 (S.D.N.Y. Dec. 14, 2022) (discussing specific time entries Commissioner objected to as unreasonable and accordingly reducing EAJA fees).
The only tasks that the Commissioner specifically opposes are related to counsel's preparation of the instant motion. The Commissioner asserts that Mr. Baker should be compensated for only 3.5 of the 4.2 hours he spent preparing the opening submission for his attorney's fee application due to “the relative brevity and the standard nature of Plaintiff's EAJA motion papers, as well as the inclusion of the administrative task of extracting time records.” Def.'s Opp. at 5. As to the Commissioner's first point, 4.2 hours is not an unreasonable amount of time to have spent on the initial filing in connection the EAJA application; indeed, similar requests have been regularly granted in this District. See, e.g., Santiago, 2023 WL 21853, at *1 n.1 (approving request where 3.9 hours were spent on initial submission for EAJA fee application); Daily, 2020 WL 1322528, at *3 (approving request where 3.9 hours were spent on initial submission for EAJA fee application); Molina, 2017 WL 3437572, at *1 n.2, 4 (approving request where 6.6 hours were spent on initial submission for EAJA fee application). As to the second point, the Commissioner takes issue with an 0.4-hour time entry for “[p]repar[ing] extract of time records; email[ing] AUSA Parsels re EAJA fees.” Def.'s Opp. at 5; see Baker Aff. ¶ 5. While it is true that “[a]dministrative or clerical work is not compensable under the EAJA,” Kottwitz v. Colvin, 114 F.Supp.3d 145, 151-52 (S.D.N.Y. 2015), the Court does not interpret this entry as an attempt to seek compensation for a non-compensable task. Not only are the time records an important substantive component of a motion for attorney's fees, but based on the amount of time allotted to these tasks and a comparison to other similar entries in the time records, it appears that counsel billed not for a clerical undertaking, but for the non-clerical, substantive work of corresponding with opposing counsel about his EAJA fee demand. See Baker Aff. ¶ 5; Salvo v. Comm'r of Soc. Sec., 751 F.Supp.2d 666, 675 (S.D.N.Y. 2010) (declining to reduce EAJA award for certain time entries that contained a “clerical element” but where it was “apparent that [counsel] billed not for the clerical task but rather for his direct involvement in, or supervision of, a legally substantive task”).
For all of these reasons, the 48.8 hours spent by Mr. Baker to litigate the merits of Plaintiff's appeal and the 8.1 hours spent to litigate the EAJA fee motion (4.2 hours for the opening submission, 3.9 hours for the reply brief and affirmation) are reasonable, and an award of $13,087.00 (56.9 hours x $230 per hour) is appropriate.
CONCLUSION
For the reasons set forth above, I respectfully recommend that Plaintiff's motion for attorney's fees (ECF No. 43) be GRANTED and that Plaintiff's counsel be awarded $13,087.00.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Kenneth M. Karas, United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Karas, and not to the undersigned.
Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).