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Raymond Jablonski v. Michael J. Astrue

March 3, 2011


The opinion of the court was delivered by: Magistrate Judge Nan R. Nolan


Plaintiff Raymond Jablonski filed this action seeking review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 416, 423(d), 1381a. The parties consented to the jurisdiction of the United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). On November 5, 2010, pursuant to sentence four of 42 U.S.C. § 405(b), the Court reversed the decision of the Administrative Law Judge ("ALJ") and remanded the case to the Commissioner for further proceedings. Plaintiff now seeks to recover his attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). For the reasons set forth herein, the application for fees is granted in part.


Plaintiff applied for DIB and SSI on May 31, 2007, alleging he became disabled on November 16, 2004, due to rheumatoid arthritis in his knees and lower back. The Commissioner denied Plaintiff's applications initially and on reconsideration. Following a hearing, the ALJ denied Plaintiff's request for benefits, finding that he retains the residual functional capacity to perform work that exists in significant numbers in the national economy. After the Appeals Council denied Plaintiff's request for review, he sought judicial review before this Court under 42 U.S.C. § 405(g).

On November 5, 2010, the Court reversed the ALJ's decision and remanded the matter to the Commissioner for further proceedings. The Court determined that the ALJ did not properly evaluate Plaintiff's mental and physical residual functional capacity, finding that the reasons given by the ALJ for rejecting the opinions of Plaintiff's treating physician were not legally sufficient or supported by substantial evidence. First, the ALJ erred in relying on the opinions of nontreating physicians over the opinions of Plaintiff's treating physician. Second, the medical evidence supported the opinions of Plaintiff's treating physician. Third, Plaintiff testified that he could not afford psychiatric treatment. Fourth, the medical expert's conclusion discounting Plaintiff's pain allegations was contrary to law. Finally, the ALJ failed to explicitly consider the effects of Plaintiff's obesity on his physical impairments.

Plaintiff now moves for attorney's fees and costs under EAJA. He seeks $9760.25 for 57.4 hours of work on the case (55 hours of attorney time at $173.75 per hour and 2.4 hours of legal assistant time at $85 per hour) as well as $20 in costs. (Mot. ¶¶ 13--14, 17 & Ex. C; Reply 1, 7--8.)


The EAJA provides that a district court may award attorney's fees where (1) the claimant was a "prevailing party," (2) the government's position was not "substantially justified," (3) no special circumstances make an award unjust, and (4) the claimant filed a timely and complete application with the district court. 28 U.S.C. § 2412(d)(1)(A); Stewart v. Astrue, 561 F.3d 679, 683 (7th Cir. 2009). The Commissioner does not oppose an award of fees to Plaintiff or assert that his position was "substantially justified." Instead, the Commissioner argues that Plaintiff's fee request reflects "non-compensable work and costs, impermissibly vague entries, and excessive time spent on matters." (Resp. 1.) The Commissioner requests the Court to "reduce Plaintiff's request to account for these improper requests." (Id. 2.)

The EAJA allows for an award of "reasonable attorney fees." 28 U.S.C. § 2412(d)(2)(A). In INS v. Jean, 496 U.S. 154, 161 (1990), the Supreme Court indicated that the district court's task of determining what fee is reasonable under the EAJA is essentially the same as that described in Hensley v. Eckerhart, 461 U.S. 424 (1983). Under Hensley, Plaintiff bears the burden of providing accurate documentation and demonstrating that his fee request is reasonable. 461 U.S. at 437. Nevertheless, "where a plaintiff has obtained excellent results, his attorney should recover a fully compensable fee." Id. at 535. A "district court may not arbitrarily reduce the number of hours requested; if it reduces hours it should provide a concise but clear explanation." Smith v. Great Am. Restaurants, Inc., 969 F.2d 430, 439 (7th Cir. 1992) (citation omitted). The district court cannot merely "eyeball the request and if it seems excessive cut it down by an arbitrary percentage." Heiar v. Crawford County, 746 F.2d 1190, 1204 (7th Cir. 1984).


The Commissioner does not assert that its position opposing Plaintiff's applications for SSI and DIB was substantially justified. (Resp. 2 n.1.) Nor does the Commissioner object to the proposed hourly rates for Plaintiff's counsel. (Id. 3 n.4.) Instead, the Commissioner asserts that the number of hours expended by Plaintiff's counsel was excessive and requests that Plaintiff's fee request be reduced by $1553.75 (8.6 hours of attorney time and 0.7 hours of legal assistant time). (Resp. 8.) In support of his assertion, the Commissioner makes a number of arguments, which the Court will address seriatim.

A. Non-compensable Time

The Commissioner argues that several of Plaintiff's counsel's time entries contain non-compensable work. (Resp. 3--5.) On May 6 and June 2, 2009, counsel billed 1.0 hours for a legal assistant to draft the fee agreement, the complaint, the summons, the appearance, and the civil cover sheet. (Mot. Ex. C.) Defendant argues that preparing a standard fee agreement, summons and civil cover sheet are clerical tasks and requests that 0.6 hours be deducted. (Resp. 3.) The Court disagrees. Pre- paring these documents requires some expertise, and counsel properly delegated them to a legal assistant. Cf. Porter v. Barnhart, 2006 WL 1722377, at *4 (N.D. Ill. June 16, 2006) ("This Court considers use of paralegals to be an appropriate way of containing legal costs and will not discount those hours.").

On August 11 and 12, 2009, counsel billed 0.4 hours of attorney time to call "Jacky Walther" and to send and receive fax documents. (Mot. Ex. C.) Defendant contends that "Jacky Walther" is an unknown person and that sending and receiving faxes is a clerical function. (Resp. 3--4.) Plaintiff agrees that receiving faxes is non-compensable clerical work, and agrees to a reduction of 0.2 hours. (Reply 1.) Further, because Plaintiff does not identify who "Jacky ...

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