United States District Court, W.D. New York
ADRIAN L. MITCHELL, Plaintiff,
NANCY A. BERRYHILL,  ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
DECISION AND ORDER
MICHAEL A. TELESCA United States District Judge
by counsel, Adrian L. Mitchell ("plaintiff")
initially brought this action pursuant to Titles II and XVI
of the Social Security Act ("the Act"), seeking
review of the final decision of the Commissioner of Social
Security ("the Commissioner") denying his
applications for disability insurance benefits
("DIB") and supplemental security income
("SSI") . On November 15, 2016, this Court reversed
that decision and remanded the case solely for the payment
and calculation of benefits. Doc. 17.
now moves for an award of attorney's fees and costs
pursuant to the Equal Access to Justice Act
("EAJA"), 28 U.S.C. § 2412, in the amount of
$9, 478.29, which represents payment for 48.9 hours of
attorney time at an hourly rate of $193.83 per hour.
Commissioner has filed a response opposing plaintiff's
motion. For the reasons set forth below, this Court grants
Plaintiff's motion for EAJA fees.
EAJA provides in relevant part that:
Except as otherwise specifically provided by statute, 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.
28 U.S.C. § 2412(d) (1) (A) . The Commissioner argues
that plaintiff s EAJA request should be denied because her
position in the underlying case was "substantially
justified." Doc. 20 at 2-6.
report and recommendation ("R&R") completed in
this case, Magistrate Judge Leslie G. Foschio found that the
ALJ improperly credited the opinion of a reviewing state
agency psychologist, Dr. Mangold, over that of an examining
state agency psychologist, Dr. Ryan, who concluded that the
plaintiff had an IQ of 59 which would result in a presumptive
finding of disability under the Listings. See 20 C.F.R. Part
404, Subpart P, Appendix 1, § 12.05(B). Despite this
valid IQ finding, the ALJ credited Dr. Mangold's
conclusion that Dr. Ryan's IQ score "appear[ed] to
be an underestimate of [plaintiff's] intellectual
abilities." T. 363.
Court agreed with Judge Foschio's finding that the ALJ
erred and adopted the R&R in its entirety in its Decision
and Order dated November 15, 2016. As the Court pointed out
in its Decision and Order remanding this case, under relevant
precedent "it is improper to rely on the opinion of a
non-treating, non-examining doctor because the inherent
subjectivity of a psychiatric diagnosis requires the
physician rendering the diagnosis to personally observe the
patient." Maldonado v. Cominfr of Soc.
Sec, 2014 WL 537564, *15 (E.D.N.Y. Feb. 10,
2014)(quoting Fofana v. Astrue, 2011 WL 4987649, *20
(S.D.N.Y. Aug. 9, 2011) (quoting Velazquez v.
Barnhart, 518 F.Supp.2d 520, 524 (W.D.N.Y. 2007))).
"Accordingly, 'the conclusions of a physician who
merely reviews a medical file and performs no examination are
entitled to little, if any, weight.'" Id.
(quoting Filocomo v. Charter, 944 F.Supp. 165, 170
n.4 (E.D.N.Y. 1996)).
the well-established precedent, the Court rejects the
Commissioner's argument that its position in the
underlying case was "substantially justified" for
purposes of the EAJA. See, e.g., Rugless v. Comm'r of
Soc. Sec, 2014 WL 2648772, *4 (W.D.N.Y. June 13, 2014)
(noting that it is the Commissioner's burden to make a
"strong showing" that its position was
"substantially justified, " and finding that where
an ALJ fails to apply the correct legal standard,
Commissioner's opposition is not substantially justified
for purposes of the EAJA). Accordingly, the Court finds that
the Commissioner was not substantially justified in defending
the ALJ's rejection of Dr. Ryan's valid,
listing-level IQ score.
Court must next determine if the hours expended and the rates
charged by plaintiff's attorney are reasonable, which
remains the burden of the fee applicant. See Hensley v.
Eckerhart, 4 61 U.S. 424, 433 (1983) . In this Circuit,
"[t]he lodestar approach governs the initial estimate of
reasonable fees." Grant v. Martinez, 973 F.2d
96, 99 (2d Cir. 1992) . Under this approach, "the number
of hours reasonably expended on the litigation [are]
multiplied by a reasonable hourly rate." See
Hensley, 461 U.S. at 433; Grant, 973 F.2d
at 99. The government argues that the request for fees is
excessive and should be reduced.
Court has broad discretion to determine the amount of time
reasonably expended, but is not required to "scrutinize
each action taken or the time spent on it" when
determining what is reasonable. Aston v. Sec'y- of
Health and Human Serv., 808 F.2d 9, 11 (2d Cir. 1986) .
District courts in this Circuit have held that a routine
social security case generally requires between twenty and
forty hours of attorney time. See e.g., Cruz v.
Apfel, 48 F.Supp.2d 226, 230 (E.D.N.Y. 1999); Grey
v. Chater, 1997 WL 12806 at *1 (S.D.N.Y. 1997);
Greenidge v. Barnhart, 2005 WL 357318 at note 16