United States District Court, S.D. Illinois
LANE D. SIMION, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 
MEMORANDUM AND ORDER
CLIFFORD J. PROUD UNITED STATES MAGISTRATE JUDGE
matter is before the Court on plaintiff's Motion for
Attorney's Fees Under the Equal Access to Justice Act.
(Doc. 31). Defendant filed a response in opposition at Doc.
33 and plaintiff filed a reply at Doc. 35.
to the Equal Access to Justice Act, 28 U.S.C.
§2412(d)(1)(A), the Court shall award attorney's
fees and expenses to a prevailing party in a civil action
against the United States, including proceedings for judicial
review of agency action, unless the government's position
was substantially justified. The hourly rate for
attorney's fees is not to exceed $125.00 per hour
“unless the court determines that an increase in the
cost of living or a special factor, such as the limited
availability of qualified attorneys for the proceedings
involved, justifies a higher fee.” §2412(d)(2)(A).
case was remanded to the Commissioner for further proceedings
pursuant to sentence four of 42 U.S.C. §405(g).
Plaintiff is, therefore, the prevailing party. See,
Shalala v. Schaefer, 509 U.S. 292, 302 (1993).
response to the motion, the Commissioner argues that both the
hourly rate and the number of hours plaintiff's counsel
claims are unreasonable.
the hourly rate, counsel asks the Court to award him $191.63
per hour for attorney time and $95.00 per hour for legal
assistant time. The Commissioner states that attorneys
representing claimants in social security cases are allowed a
maximum of $125 per hour per the EAJA but she acknowledges
that the courts may award enhanced fees due to an increased
cost of living. Sprinkle v. Colvin, 777 F.3d 421,
423 (7th Cir. 2015).
Sprinkle, the Court clarified that EAJA claimants
that seek inflation-based rate adjustments do not need to
prove the “effects of inflation on the particular
attorney's practice” and do not need to prove
“that no competent attorney could be found for less
than the requested rate.” Id. at 423. Instead,
a claimant can rely upon a “general and readily
available measure of inflation such as the Consumer Price
Index [CPI].” Id. “An affidavit from a
single attorney testifying to the prevailing market rate in
the community may suffice to meet that burden.”
does not make a fee increase automatic because the government
can still raise evidence that the CPI does not provide an
accurate measure of the cost of living in a certain market.
Id. The claimant must also supply
“satisfactory evidence” that the “rate they
request is in line with those prevailing in the community for
similar services by lawyers of comparable skill and
experience.” Id. A district court may,
“in its discretion” find one sworn statement from
the claimant's attorney as sufficient for this purpose.
Id. at 429.
Court notes that the Commissioner is correct in noting that
the CPI for “all urban consumers” on a national
level is not the same as the CPI applicable to the Midwest
area where plaintiff's attorney practices law. Plaintiff
concedes that it is within the Court's discretion to
determine whether the regional CPI is more appropriate. The
Midwest area CPI for July 2015, when the majority of
plaintiff's work was performed, was $186.10. Therefore,
the Court will use this figure in determining plaintiff's
ultimate reward. This rate is similar to what other judges in
this Circuit have approved since Sprinkle. See,
eg, Trump v. Colvin, 2015 WL 970111 at *3, 4
(N.D.Ill.2015); Smith-Harvey v. Colvin, 2015 WL
1548955 at *2 (S.D.Ind.2015); Embry v. Colvin, No.
12 C 3685, 2015 WL 4720106, at *4 (N.D. Ill. Aug. 4, 2015).
contends the number of hours her counsel and his support
staff expended on the case, approximately 54, is reasonable
and the court has the discretion to award fees for those
hours. There is no per se rule for capping hours,
instead the Court must analyze if the hours are
“reasonably expended.” It is an attorney's
responsibility to use “billing judgment” because
“hours that are not properly billed to one's client
also are not properly billed to one's adversary pursuant
to statutory authority.” Hensley v. Eckerhart,
461 U.S. 424, 433-434 (1983). To determine if hours are
reasonably expended, factors like novelty and difficulty of
the questions, the skill required to perform the legal
service, and the customary fee are taken into consideration.
Id. at 434.
Commissioner argues that the 35.6 hours plaintiff spent
drafting the opening and the additional 14.5 hours on the
reply brief was excessive. She also argues that
plaintiff's case was routine and the issues raised in
plaintiff's brief on the merits were neither new nor
novel. The Commissioner contends that with plaintiff's
counsel's experience spending 10 hours reading and taking
notes on a record that had a total of 349 pages was
unjustified. The Commissioner takes issue with the 35 hours
spent preparing the opening brief, 14.5 hours spent preparing
the reply brief, 1.5 hours spent re-reading the
plaintiff's own opening brief, and 4.2 hours editing and
cutting the draft reply brief. Doc. 31, pp 12-13.
Commissioner contends that a portion (.4 hours) of the
assistant hours plaintiff requests to be compensated for are
not allowed under the EAJA. She cites cases that indicate
legal assistant hours are not properly included in a fee
request unless the legal assistant performs work
traditionally performed by an attorney. Donaldson v.
Colvin, No. 11-cv-00554-JPG, 2013 WL 1156414, *2 (S.D.
Ill. Mar. 20, 2013) (citing Allen v. U.S. Steel
Corp., 665 F.2d 689, 697 (5th Cir.1982)). The
Commissioner suggests the Court deduct 10 hours of attorney
time and .4 hours of legal assistant time as a result of
Commissioner is correct that plaintiff's counsel
routinely raises the issues he raised in this case in other
Social Security cases. However, this does not support the
idea that plaintiff's counsel put little or no work
effort into this case. Further, the Court agrees with
plaintiff that classifying a case as “typical”
does not mean plaintiff is not entitled to fair compensation
for the time her attorney spent advocating on her behalf. The
Court notes that 54 hours is not completely outside the realm
of reasonableness for a social security disability case.
See, e.g., Porter v. Barnhart, No. 04 C 6009, 2006
WL 1722377, at 4 (N.D. Ill. June 19, 2006) (awarding 88.2
hours of attorney's fees).
Court also notes that 54 hours is considered to be on the
“high end of the range of hours that courts within this
circuit have considered reasonable for social security
appeals.” Schulten v. Astrue, 2010 WL 2135474,
at *6 (N.D.Ill.2010)(finding the “permissible
range” to be, “generally speaking” 40 to 60
hours). However, as plaintiff's counsel notes, there are
many cases where comparable or greater hours have been
awarded. Here, the record was considerably shorter
(349 pages of total record with 146 pages of medical records
of which several are duplicates) than many records this Court
sees on a regular basis. Spending 10 hours reading and
reviewing this record does seem excessive, as does spending
1.5 hours rereading plaintiff's own brief. While the
Court acknowledges that plaintiff's attorney had to be
diligent and conduct a detailed review of the record in order
to find the errors committed by the ALJ, spending over 35
hours preparing the opening brief for this case was
unnecessary. As a result, the Court will reduce the ...