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Mitchell v. Berryhill

United States District Court, W.D. New York

March 17, 2017



          HON. MICHAEL A. TELESCA United States District Judge

         I. Introduction

         Represented 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.

         Plaintiff 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.

         The Commissioner has filed a response opposing plaintiff's motion. For the reasons set forth below, this Court grants Plaintiff's motion for EAJA fees.

         II. Discussion

         The 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.

         In a 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.

         This 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)).

         Considering 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.

         The 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.

         The 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 ...

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