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Kottwitz v. Commissioner of Social Security

United States District Court, S.D. New York

January 16, 2015

LISA MADELINE KOTTWITZ, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant

For Lisa Madelaine Kottwitz, Plaintiff: Howard David Olinsky, Olinsky Law Group, Syracuse, NY.

For Commissioner of SS Carolyn W. Colvin, Defendant: Susan D. Baird, LEAD ATTORNEY, U.S. Attorney's Office, S.D.N.Y. (St Andw's), New York, NY.

REPORT AND RECOMMENDATION

SARAH NETBURN, United States Magistrate Judge.

TO THE HONORABLE PAUL G. GARDEPHE:

Plaintiff Lisa Madeline Kottwitz brought this action for review of the final determination by the Commissioner of Social Security (the " Commissioner") denying her application for Social Security disability benefits pursuant to the Social Security Act (the " Act"), 42 U.S.C. § 401 et seq . After discussion between the parties led to an agreement to remand, the Clerk of Court entered judgment and remanded the case to the Commissioner. Kottwitz now moves for attorneys' fees pursuant to the Equal Access to Justice Act (the " EAJA"), 28 U.S.C. § 2412. For the following reasons, Kottwitz's motion should be GRANTED in part and DENIED in part, and the Commissioner directed to pay $14.43 in reasonable expenses.

BACKGROUND

On April 15, 2014, Kottwitz filed her complaint through counsel. On May 7, 2014, the Honorable Paul G. Gardephe referred this matter to my docket to report and recommend on any dispositive motions. On July 2, 2014, the Court entered the parties' stipulation and order of remand, returning the case to the Commissioner for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). That same day, the Clerk of Court entered judgment and remanded the case.

On August 21, 2014, Kottwitz filed this motion for attorneys' fees, which the Commissioner opposed on August 29, 2014. The motion became fully submitted on September 12, 2014. Thereafter, the Court held a conference to discuss whether the plaintiff's Counsel (hereinafter " Counsel") maintained contemporaneous time records in light of changing dates reflected in Counsel's statements provided before the fee motion was filed and after. The Court directed the parties to meet and confer in an effort to settle the matter and, if no resolution could be reached without judicial intervention, Counsel was directed to file a declaration describing the system used by his law firm to record contemporaneously those hours for which he seeks to recover. No resolution was reached, and Counsel filed his declaration on October 3, 2014. The Commissioner filed a response on October 14, 2014.

Kottwitz's Counsel seeks $1, 153.74 in fees, $40.00 for administrative work, and $14.43 in costs. The Commissioner objects to an attorneys' fee award in this case because counsel has failed to demonstrate that he kept contemporaneous time records, and objects to an award for administrative services as outside the scope of permissible fee awards. The Commissioner does not object to an award for $14.43 in costs.

DISCUSSION

I. EAJA Prevailing Party Fees

The EAJA provides that " a court shall award to a prevailing party [attorneys' fees in certain civil actions] . .., including proceedings for judicial review of agency 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." 28 U.S.C. § 2412(d)(1)(A). This provision's purpose is to " decrease the chance that certain individuals . . . may be deterred from seeking review of, or defending against unreasonable governmental action because of the expense involved in securing the vindication of their rights." Green v. Bowen, 877 F.2d 204, 206 (2d Cir. 1989) (citation and internal quotation marks omitted).

Under the EAJA, the Court must consider whether: (1) the claimant is a " prevailing party"; (2) the government's position was " substantially justified"; (3) any " special circumstances make an award unjust"; and (4) the fee application was submitted within thirty days of final judgment in the action. Kerin v. U.S. Postal Serv., 218 F.3d 185, 189 (2d Cir. 2000) (citing 28 U.S.C. § 2412(d)).

The Commissioner does not challenges the plaintiff's fee application on the basis of any of these four factors, and the Court has independently reviewed the facts in this case and determined that the plaintiff would ordinarily be entitled to an award of reasonable fees. Instead, the Commissioner argues that the plaintiff may not receive a fee award in this case because: (1) Counsel ...


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