United States District Court, S.D. Illinois
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. 37). Defendant filed a response in opposition at Doc.
40 and plaintiff filed a reply at Doc. 41.
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).
This 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
response to the motion, the Commissioner argues that the
number of hours plaintiff's counsel claims are
unreasonable. Plaintiff contends the number of hours her
counsel and his support staff expended on the case,
approximately 88.3, 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 32.75 hours to review and take
notes on the administrative record was excessive. She
contends that the Court should reject the 10.25 hours
plaintiff's spent advancing arguments regarding
credibility and requesting the Court to grant benefits
because they were ultimately rejected by the Court. The
Commissioner also argues that plaintiff's case was
routine and the issues raised in plaintiff's brief on the
merits were neither new nor novel. Generally, she states that
the 86.7 hours of attorney time is illogical but notably
fails to state how many hours she feels would be considered
reasonable for the petitioner to claim.
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.
Court notes that 86.7 hours of attorney work is considered to
be higher than the range “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). The Court also notes that 86.7 hours of attorney work
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
seeks $17, 056.11 in his initial petition. Plaintiff cites
several cases for attorney fees that have been granted within
the Seventh Circuit, but as the Commissioner notes, only two
of the seventeen cases cited sought more than $12, 500. The
Commissioner also points to a previous case that
plaintiff's attorney litigated where the record was
longer, contained a previous ALJ decision similar to the one
at hand, and plaintiff's attorney only spent 41.7
attorney hours on litigation. The Commissioner also cites
cases plaintiff's attorney litigated with records that
are 500-600 pages shorter where he spent anywhere from
33-58.5 hours on litigation.
attorney addresses the Commissioner's arguments for each
case and explains that in some cases with large records the
entire record may not have needed to be reviewed in its
entirety, some of the evidence may have been duplicative, or
perhaps he was extremely efficient with other cases. For
example, he notes that one of the cases cited by the
Commissioner was about 56% shorter than the record in the
current case, and he spent 49.6 hours briefing that case. If
he multiplied those hours by the difference it would amount
to 77.37 hours. Plaintiff's attorney addressed a similar
case where, if the amount of billable time was directly
reflective of the record length, he would have billed 86.7
hours if it were the same length as the case at hand.
counsel contends that if he spent one minute on each page of
the record he would have spent 28.5 hours on review, 4.25
hours less than the amount he requests for his review of
plaintiff's case. Further, as plaintiff notes, the
Commissioner did not suggest the arguments plaintiff failed
on were unreasonable or frivolously made. She cites a Seventh
Circuit case that stated fees should not be reduced because a
party did not prevail on arguments reasonably made.
Jaffee v. Redmond, 143 F.3d 409, 416-17 (7th Cir.
this Court believes plaintiff should be awarded fees for the
time spent on her case, including time spent on arguments
that did not prevail, the total amount of hours requested is
excessive. Since the Commissioner failed to recommend an
amount of time she considers to be reasonable, the Court will
use the amount of hours proportional to the case cited by the
Commissioner as discussed above, 77.37 hours.
the Court looks at plaintiff's request for an additional
$513.97 for the time spent on her reply brief for the current
matter. Plaintiff's attorney claims he spent an
additional 2.7 hours on the response to the
Commissioner's response to her petition for
attorney's fees. The Court notes that replying to the
Commissioner's response is completely voluntary and not
required for the merits of the motion to be reviewed.
However, plaintiff had to do additional research on the
issues presented by the Commissioner within her response to
plaintiff's motion for fees. As a result the Court finds
plaintiff's time spent preparing the reply justified.
reasons discussed above, plaintiff's Motion for
Attorney's Fees Under the Equal Access to Justice Act
(Doc. 37) is GRANTED.
Court awards attorney's fees in the amount of $15, 794.12
(fifteen thousand seven hundred and ninety-four dollars and
twelve cents)(77.37 hours * $190.36 $152 assistant ...