United States District Court, W.D. New York
JOSHUA B. BLUMAN, Plaintiff,
NANCY A. BERRYHILL,  ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
DECISION AND ORDER
FRANK P. GERACI, JR. CHIEF JUDGE.
October 7, 2016, the Court granted Plaintiff's Motion for
Judgment on the Pleadings and remanded this case to the
Commissioner of Social Security for further administrative
proceedings, and on October 11, 2016, the Clerk of Court
entered Judgment in Plaintiff's favor. ECF Nos. 7, 8. On
November 14, 2016, Plaintiff applied for $15, 246.00 in
attorney fees and $400.00 in costs for 101.5 hours of work
pursuant to the Equal Access to Justice Act, 28 U.S.C. §
2412 (“EAJA”). ECF No. 10. The Commissioner
opposes Plaintiff's motion and argues that counsel's
hourly rate and expenditure of 101.5 hours is
“excessive and unreasonable.” ECF No. 11 at 1.
Plaintiff did not file a reply addressing the
Commissioner's arguments. For the reasons that follow,
Plaintiff's Motion for Attorney Fees (ECF No. 10) is
GRANTED IN PART and counsel is awarded $5, 716.20 in attorney
fees and $400.00 in costs.
to EAJA, a prevailing party in a Social Security benefits
case may be awarded fees payable by the United States if the
Government's position in the litigation was not
“substantially justified.” 28 U.S.C. §
2412(d)(1)(A). 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).
Court must determine if the hours expended and the rates
charged are reasonable, ” Ballard v. Astrue,
485 F.Supp.2d 290, 291 (W.D.N.Y. 2007) (citations omitted),
and the Court has broad discretion to determine what amount
of time is “reasonably” expended, Aston v.
Sec'y of Health & Human Servs., 808 F.2d 9, 11
(2d Cir. 1986). It is the fee applicant's burden to
establish “to the court's satisfaction the
reasonableness of the hours expended and rates
charged.” Pavia v. Comm'r of Soc. Sec.,
No. 5:10-CV-0818 GTS/DEP, 2013 WL 5652497, at *4 (N.D.N.Y.
Oct. 15, 2013).
the sole issue is whether the fee sought is
“reasonable.” ECF No. 11 at 2-7. Specifically,
the Commissioner asserts that counsel's hourly rate and
the request for compensation for 101.5 hours are excessive
and unreasonable. Id. These issues are addressed
Counsel's Hourly Rate
requires attorney reimbursement at a rate of $125 per hour,
subject to an upward cost of living adjustment or special
factors justifying a higher fee. See 28 U.S.C.
§ 2412(d)(2)(A). “The current statutory cap of
$125 per hour took effect in 1996, and the Court may revise
it upward to reflect inflation as determined by the Consumer
Price Index [“CPI”].” Isaacs v.
Astrue, No. 07-CV-257A, 2009 WL 1748706, at *3 (W.D.N.Y.
June 19, 2009) (citations omitted).
March 1996, when this cap was imposed, the CPI was 155.7.
See Bureau of Labor Statistics, Consumer Price
Index: March 1996, https://www.bls.gov/news.release/history/
cpi041296.txt (last visited Sept. 6, 2017). In November 2015,
when Plaintiff's firm billed the majority of its time in
this case, the CPI was 237.336. See Bureau of Labor
Statistics, U.S. Dep't of Labor, Archived Consumer Price
Index Detailed Reports, 2015 Detailed Reports, Data for
November 2015 at 4,
https://www.bls.gov/cpi/detailed-report.htm (last visited
Sept. 6, 2017). Accordingly, the appropriate hourly rate is
$190.54. Plaintiff's counsel seeks, without
explanation, an hourly rate of $300.00, which is well beyond
the appropriate rate pursuant to EAJA after adjustment for
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.” Mitchell v. Berryhill, No.
1:14-CV-00418 (MAT), 2017 WL 1047360, at *2 (W.D.N.Y. Mar.
17, 2017) (quotation marks and citation omitted). District
courts in the Second Circuit “generally hold that
twenty to forty hours is a reasonable expenditure of counsel
time for routine social security cases.” Barbour v.
Colvin, 993 F.Supp.2d 284, 290 (E.D.N.Y. 2014)
(collecting cases). Attorney fees above this amount
“will be awarded where the facts of the specific case
warrant such an award.” Id. (citations
omitted). “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. (citation
omitted). “[W]hen a case does not rais[e] any
extraordinarily difficult or complex legal or factual issues,
courts have determined that the hours spent litigating it
should not have exceeded the guideline range.”
Rivera v. Astrue, No. 07-CV-3129, 2009 WL 1351044,
at *1 (E.D.N.Y. May 13, 2009) (quotation marks and citation
the size of the administrative transcript (748 pages) is in
line with what this Court typically sees in a Social Security
case. Additionally, the factual and legal issues
involved in this case were not complex. Plaintiff raised
arguments routinely made in Social Security appeals: (1) that
the ALJ violated the treating physician rule; (2) that the
ALJ's credibility analysis was improper; (3) that the ALJ
improperly evaluated the combination of Plaintiff's
impairments; (4) that the ALJ improperly relied on vocational
expert testimony; and (5) that the Appeals Council erred by
failing to consider new and material evidence. ECF No. 5-1 at
18-30. Moreover, the procedural history of this case was
simple-Plaintiff and the Commissioner each filed competing
motions for judgement on the pleadings. ECF Nos. 5, 6.
Plaintiff did not file a reply brief and the Court did not
hear oral argument.
has almost 34 years of experience representing Social
Security plaintiffs (ECF No. 10-2 at ¶ 2) and thus is
very knowledgeable and skilled in this area of the law.
Counsel also represented Plaintiff at the administrative
level (see Tr. 333-35, 337-40) and should have been
familiar with the facts and issues of this case. Counsel has
offered no explanation why this case warrants an attorney fee
award of 101.5 hours, which is far beyond the standard 20 to
40 hours. See, e.g., Pavia, 2013 WL
5652497, at *4 (“The ...