United States District Court, N.D. Illinois, Eastern Division
JENNIFER M. CUMMINGS, Claimant,
NANCY A. BERRYHILL,  Acting Commissioner of Social Security, Respondent.
MEMORANDUM OPINION AND ORDER
Jeffrey T. Gilbert Magistrate Judge
matter is before the Court on an Application for
Attorneys' Fees under the Equal Access to Justice Act
[ECF No. 26]. On December 19, 2014, Claimant Jennifer
Cummings filed a complaint for judicial review of an
administrative decision denying her applications for
disability insurance benefits. [ECF No. 1], On August 24,
2016, this Court issued a Memorandum Opinion and Order
remanding this case to the Social Security Administration for
further proceedings. [ECF No. 24]. On November 22, 2016,
Claimant filed the instant Application for Attorneys'
Fees under the Equal Access to Justice Act
("EAJA"), seeking attorneys' fees and costs in
the amount of $9, 232.62. [ECF No. 26], at 4. On December 22,
2016, the Commissioner filed a response arguing that Claimant
should receive a lower award. [ECF No. 32]. On December 28,
2016, Claimant filed a reply seeking the amount stated in her
Application and an additional $588.84 for preparing the reply
brief, for a total request of $9, 821.46 in fees and costs.
[ECF No. 33], at 6. This matter is ripe for decision.
EAJA provides that a court shall award reasonable
attorneys'' fees and costs to a "prevailing
party" in a civil action against the United States that
is submitted within thirty days of final judgment
"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); see United States v. Hallmark Const.
Co., 200 F.3d 1076, 1078-79 (7th Cir. 2000) (setting
forth the elements of § 2412(d)(1)). In this case, it
is uncontested that Claimant filed the instant application
for attorneys' fees in a timely manner and that Claimant
is a prevailing party because the Court reversed and remanded
the Commissioner's decision in its August 24, 2016
Memorandum Opinion and Order [ECF No. 24]. See Shalala v.
Schaefer, 509 U.S. 292, 300-302 (1993); Bassett v.
Astrue, 641 F.3d 857, 859 (7th Cir. 2011).
court should exclude from the fee calculation hours that were
not reasonable expended." Ruiz v. Colvin, 2016
WL 2908287, at *3 (N.D. Ind. May 18, 2016) (quoting
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983))
(internal quotation marks omitted). The claimant bears the
burden of proving that hours were "reasonably
expended." Id. To determine whether a
claimant's hours were reasonable, a court considers
factors such as the complexity of the case, the number and
type of issues raised, and the size of the administrative
record. English v. Colvin, 2015 WL 5227854, at *4
(S.D. Ind. Sept. 8, 2015). Even when assessing the
reasonableness of the hours expended, the "court 'is
not in the business of divining why a particular attorney
reads or writes at a certain rate of speed in one case and a
different rate in another.'" Id. at *5
(quoting Delgado v. Astrue, 2012 WL 6727333, at *3
(N.D. 111. Dec. 28, 2012)).
standard range for hours worked on Social Security litigation
in the Seventh Circuit is 40-60 hours." Bohannon v.
Colvin, 2017 WL 192334, at *2 (N.D. Ind. Jan. 18, 2017);
see also Coleman v. Colvin, 2016 WL 6563485, at *3
(S.D. 111. Nov. 4, 2016) (citing another case for the
proposition that "the 'permissible range'"
is '"generally speaking' 40 to 60 hours")
(quoting Schulten v. Astrue, 2010 WL 2135474, at *6
(N.D. 111. May 28, 2010)); Witt v. Colvin, 2016 WL
3049568, at *2 (N.D. Ind. May 31, 2016) (citing
another case for the same proposition); Trump v.
Colvin, 2015 WL 970111, at *4 (N.D. 111. Mar. 2, 2015)
(same). Courts "regularly award attorney's fees
totaling over 60 hours" when the circumstances of the
case justify doing so. Ruiz, 2016 WL 2908287, at *3.
But they "rarely grant awards that greatly exceed that
number." Embry v. Colvin, 2015 WL 4720106, at
*5 (N.D. 111. Aug. 4, 2015).
case, the number of hours expended by Claimant's
attorneys-45.7-falls in the lower half of the standard range.
The Court recognizes that, at 327 pages, the administrative
record in this case was shorter than is normal. But
Claimant's initial brief in support of her motion for
summary judgment was 15 pages long and advanced more than a
half-dozen arguments. [ECF No. 14]. Claimant's reply
brief was 12 pages long and, in responding to the
Commissioner's contentions, again addressed more
arguments than are normally raised in a Social Security case.
[ECF No. 23]. The time that Claimant's attorneys and
legal assistants spent on a variety of smaller tasks that
advanced this case, such as speaking with Claimant and
drafting her EAJA application, does not constitute a
significant amount of time and does not appear excessive,
duplicative, or frivolous.
Commissioner raises three arguments that she contends justify
reducing Claimant's award. The Commissioner's first
argument is that the Court should calculate Claimant's
attorneys' fees using the Consumer Price Index
("CPI") for the Chicago region rather than the
CPI-A11 Urban Consumers ("CPI-U"), which Claimant
uses. In Sprinkle v. Colvin, the Seventh Circuit
recognized courts "in this circuit have relied both upon
the [CPI-U] . . . and region-specific indices."
Sprinkle v. Colvin, 111 F.3d 421, 428 n.2 (7th Cir.
2015). The court of appeals chose to "not resolve this
split" and left it "to the discretion of the
district courts whether to adopt the national or regional
index in specific cases." Id. Following
Sprinkle, the courts in this district have not
reached a uniform consensus on the issue. Compare Vasquez
v. Colvin, 2016 WL 687900, at *2 (N.D. 111. Feb. 19,
2016) with Fox v. Colvin, 2016 WL 5402751, at *2
(N.D.Ill. Sept. 26, 2016).
Commissioner cites three cases in which courts used a
regional CPI measure. [ECF No. 32], at 3. In one, the issue was
not disputed because the claimant suggested using a regional
measure. Adams v. Colvin, 2015 WL 1780144, at *2
(N.D. Ind. Apr. 20, 2015). In another, this Court decided
without analysis, in a two-sentence footnote, to use the
Chicago-Gary-Kenosha regional CPI-U. Trump, 2015 WL
970111, at *3 n.3. In the final cited case, the court said
"district courts have utilized the regional index"
in "the few published decisions in this Circuit since
the Sprinkle decision" and then cited
Adams and Trump. Vasquez, 2016 WL 687900,
2013 decision, this Court analyzed the CPI issue and decided
to use a national CPI measure. Rodriguez v. Colvin,
2013 WL 5221335, at *2-3 (N.D. 111. Sept 16, 2013). Recently,
other courts in this circuit have done the same. See,
e.g., Ruiz, 2016 WL 290828, at *2; Monk v.
Colvin, 2016 WL 4445659, at *3 (N.D. Ind. Aug. 23,
2016). Often, courts that adopt a national CPI measure do so
in significant part because a national measure results in a
fee award that "is more in line with the prevailing
market rate." Seefeldt v. Colvin, 2016 WL
5793683, at *2 (E.D. Wis. Sept. 30, 2016); see also
Fox, 2016 WL 5402751, at *3 ("Moreover, plaintiffs
argument that we should use the index that results in an
hourly rate that comes closest to approximating the
prevailing market rate is not an unreasonable one.");
Jawad v. Barnhart, 370 F.Supp.2d 1077, 1083-89 (S.D.
Cal. 2005). The Court finds this rationale persuasive.
Therefore, based on the arguments before it today, the Court
is not convinced that using the regional CPI is a better
Commissioner's second argument is that the Court should
reduce the attorney time for which it awards fees. In her
Application, Claimant sought fees for 45.7 hours of attorney
time. The Commissioner argues she should receive fees for
only 35 hours. The Commissioner identifies two bases for her
challenge to claimant's hours. The first is that three
attorneys worked on this case for Claimant. The itemization
provided by Claimant reflects that one of her attorneys (Ms.
Coen) performed the vast majority of the work on
Claimant's case. A second attorney (Mr. Marvin) spent
only 1 hour reviewing and editing Claimant's initial
brief, and a third (Mr. Schultz) spent just 1.1 hours
reviewing and editing Claimant's reply
brief. In this case, the Commissioner has not
argued that the work performed by Mr. Marvin and Mr. Schultz
was duplicative or frivolous. Instead, the Commissioner only
contends their participation in the case "required that
several different people develop familiarity with the
case." [ECF No. 32], at 5.
have long recognized the propriety of billing for junior and
senior attorney hours in EAJA fee requests . . . ."
Witt, 2016 WL 3049568, at *3. "'[R]eview by
a senior attorney ensures that the quality of the brief is
high and that necessary revisions are made before the brief
is filed with the Court.'" Id. (quoting
Kinsey-McHenry v. Colvin, 2014 WL 1643455, at 3
(N.D. Ind. April 23, 2014)); see also Ruiz, 2016 WL
2908287, at *4. In this case, the two supervising attorneys
each spent roughly one hour reviewing long briefs that
advanced multiple arguments supported by case law and record
citations. Despite the Commissioner's concern about
having multiple attorneys develop familiarity with the case,
there is no indication the supervising attorneys did anything
of significant other than review drafts and make final edits.
Claimant is not trying to stick the Commissioner with a bill
for having three different attorneys pore over the
administrative record and lengthy or complex precedents.
Therefore, the Court finds the time spent by Mr. Marvin and
Mr. Schultz to be reasonable.
Commissioner's second basis for challenging
Claimant's hours is that "the issues in the case
were not novel or unique." [ECF No. 32], at 6. Many
courts in this circuit have explained that '"most
social security cases do not present particularly complex
legal issues, but that does not mean that providing a
thorough exegesis of the record, pointing out various pieces
of evidence that the administrative law judge overlooked or
misrepresented, and explaining why those oversights are
material to the outcome does not take time.'"
Monk v. Colvin, 2016 WL 4445659, at *2 (N.D. Ind.
Aug. 23, 2016) (quoting Martinez v. Astrue, 2012 WL
1563907, at *6 (N.D. Ind. Apr. 30, 2012)). In light of the
Court's previous discussion of the reasonableness of the
hours worked by Claimant's attorneys, the
Commissioner's undeveloped assertion with respect to
complexity does not justify the reduction it seeks.
Commissioner's final argument is that any award must be
made payable to Claimant under Astrue v. Ratliff,
130 S.Ct. 2521 (2010). [ECF No. 32], at 6. Ratlijf
does not demand that an award be made payable to a
claimant in every case. See Trump, 2015 WL 970111,
at *6 ("Any EAJA fees awarded shall be made payable
directly to Claimant's attorney pursuant to the
assignment of fees in Claimant's fee agreement with his
counsel."). "[T]he Seventh Circuit has interpreted
Ratliff to hold that 'if there is an assignment
[by the litigant of a prospective fee award to his attorney],
the only ground for the district court's insisting on
making the award to the plaintiff is that the plaintiff has
debts that may be prior to what she owes her
lawyer.'" Russell v. Astrue, 2014 WL
1301942, at *4 (N.D. 111. Mar. 31, 2014) (quoting
Mathews-Sheets v. Astrue, 653 F, 3d 560, 565 (7th
Cir. 2011), overruled on other grounds by Sprinkle,
111 F.3d 421).
case, the retainer and fee agreement submitted by Claimant
with her Application states, "Client agrees that these
fees be payable to Mr. Shultz directly and assigns said EAJA
fees to Mr. Schultz." [ECF No. 26-2], There is no
indication Claimant owes a pre-existing debt to the United
States. Instead, the Commissioner only says Claimant might
owe such a debt and implies the Commissioner has not yet
checked to see whether that is the case. See [ECF
No. 32], at 7 ("If the court enters an award of EAJA
fees in this case, [the Commissioner] will determine whether
[Claimant] owes a pre-existing debt to the United
States.") When the Commissioner provides no more than
speculation "that there may be an outstanding debt,
" the "majority of judges in this district"
order the Commissioner to pay fees directly to the
claimant's counsel if there is an assignment of the fee
award. Booker v. Colvin, 2013 WL 3013648, at ...