Cano v. Saul

505 F.Supp.3d 20

Joseline CANO, Plaintiff,

v.Andrew SAUL, Commissioner, Social Security Administration, Defendant.

Civil Action No. 1:19-cv-11563-ADB

United States District Court, D. Massachusetts.

Signed November 25, 2020

Dana Montalto, Legal Services Center of Harvard Law School, Jamaica Plain, MA, for Plaintiff.

Nicole Sonia, Social Security Admin., Office of the General Counsel, Boston, MA, for Defendant.

MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR ATTORNEYS’ FEES

BURROUGHS, D.J.

Presently before the Court is Plaintiff Joseline Cano's motion for attorneys’ fees and expenses pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d), in the amount of $16,275.50. [ECF No. 22]. Defendant Andrew Saul, the Commissioner of Social Security (the "Commissioner"), filed a response in opposition to Cano's request. [ECF No. 23]. Plaintiff filed a reply, [ECF No. 26], and the Commission filed a sur-reply, [ECF No. 29]. For the following reasons, Cano's motion for fees, [ECF No. 22], is GRANTED in part.

I. BACKGROUND

Cano applied for Title II Disability Insurance Benefits and Supplemental Security Income on February 4, 2016. [ECF No. 11-2 at 100]. On July 19, 2016, both applications were denied. [ECF No. 11-5 at 3–8]. Cano applied for reconsideration on August 5, 2016, and her applications were again denied on September 29, 2016. [Id. at 9, 15, 21]. Cano then requested a hearing, which proceeded before Administrative Law Judge Stephen C. Fulton ("ALJ Fulton") on August 24, 2017. [Id. at 26; ECF No. 11-3 at 19]. ALJ Fulton denied Cano's claims on October 30, 2017. [ECF No. 11-2 at 129]. In December 2017, Cano filed a request for review of ALJ Fulton's decision, which the Appeals Council denied on May 29, 2019. [ECF No. 11-5 at 95–97; ECF No. 11-2 at 2–5]. On July 17, 2019, Cano filed a complaint in this Court seeking review of the Commissioner's decision, [ECF No. 1], and on November 1, 2019, she filed a motion to reverse or remand the Commissioner's decision, [ECF No. 12]. On January 13, 2020, the Commissioner filed a motion to affirm his decision. [ECF No. 15]. On April 15, 2020, the Court granted Cano's motion to reverse or remand in part, and denied the Commissioner's motion to affirm. [ECF No. 20]. Cano then filed her motion for attorneys’ fees pursuant to the EAJA on July 11, 2020. [ECF No. 22].

II. DISCUSSION

A. Entitlement to Award

The EAJA provides that:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs ... incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, 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)(A). Accordingly,

eligibility for a fee award in any civil action requires: (1) that the claimant be a ‘prevailing party’; (2) that the Government's position was not ‘substantially justified’; (3) that no ‘special circumstances make an award unjust’; and, (4) pursuant to 28 U.S.C. § 2412(d)(1)(B), that any fee application be submitted to the court within 30 days of final judgment in the action and be supported by an itemized statement.

Comm'r, INS v. Jean, 496 U.S. 154, 158, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990). The Court finds that each criterion is met in this case, and the Commissioner does not contest that Cano has met these requirements and is entitled to an award of attorneys’ fees under the EAJA. [ECF No. 23 at 2–3]. The Commissioner does, however, contest the reasonableness of the fees requested. [Id. at 3].

B. Scope of Award

In Hensley v. Eckerhart, the Supreme Court held that "[c]ounsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary ...." 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). As the fee applicant, Cano "bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Id. at 437, 103 S.Ct. 1933. After the applicant has made his or her case, the district court must review the fee request and exclude hours that were not "reasonably expended." Id. at 434, 103 S.Ct. 1933. There is "no precise rule or formula" for determining fee reductions in this context. Id. at 436, 103 S.Ct. 1933. "The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award .... The court necessarily has discretion in making this equitable judgment." Id. at 436–37, 103 S.Ct. 1933.

Cano submitted an itemized statement of fees seeking an award of $16,275.50, which represents a total of 16.5 attorney hours expended at a rate of $207.00 per hour, 20.1 paralegal hours expended at a rate of $100.00 per hour, and 102.5 law student hours expended at a rate of $100.00 per hour. [ECF No. 22 at 5].¹ Cano also requests $350.00 for federal court filing fees and $50.00 for the District of Massachusetts filing fees paid to commence this action. [Id. ].

The Commissioner contests the reasonableness of the total number of hours Cano's counsel expended on the case as well as the rates charged for paralegal and law student work. [ECF No. 23 at 1]. Specifically, the Commissioner argues that Cano's fee award should be reduced to no more than $5,565.60 for 45 hours of work, which represents a total of 14.8 attorney hours expended at a rate of $207.00 per hour, 15.8 paralegal hours expended at a rate of $90.00 per hour, and 14.4 law student hours expended at a rate of $75.00 per hour. [Id. at 2]. Cano objects to this proposed reduction. [ECF No. 26].

The Commissioner asserts that the number of hours outlined in Cano's fee request is unreasonable and excessive because: (1) the hours billed exceed the average amount of time spent on a Social Security appeal of this nature; (2) 139.1 hours is excessive considering that Cano prevailed on only two of her three arguments and "did not achieve the most favorable outcome possible—a remand for the payment of benefits"; (3) the fee request is "exorbitant" as the case involved "routine rather than novel" issues; (4) the number of law student hours billed is excessive and there are redundancies in connection with the law student's work; (5) pre-complaint tasks and duplicative entries should not be compensated. [ECF No. 23 at 3–9]. The Commissioner additionally maintains that the hourly rates requested for paralegal work and student work are too high. [Id. at 10–11].

1. Average Number of Hours

While Cano concedes that "courts have found 40 hours to be a reasonable amount of time to spend on average Social Security cases," she justifies the 139.1 hours spent as reasonable when taking into account the large size of the administrative record and the complexity of her case. [ECF No. 26 at 4]. The Court addresses these arguments below, however, it is useful to first establish a benchmark for the average number of hours expended on a typical Social Security appeal. Case law from the First Circuit supports the Commissioner's contention that the average number of hours for a case of this type is between 20 and 40 hours. Traci H. v. Berryhill, No. 16-cv-00568, 2018 WL 6716693, at *9, 2018 U.S. Dist. LEXIS 214988, at *22 (D. Me. Dec. 21, 2018) (observing that 52.1 hours "exceeds the high end of the range for such cases"), report and recommendation adopted, 2019 WL 166543, 2019 U.S. Dist. LEXIS 4572 (D. Me. Jan. 10, 2019) ; Staples v. Berryhill, No. 15-cv-00392, 2017 WL 2570890, at *3, 2017 U.S. Dist. LEXIS 91184, at *9 (D. Me. June 13, 2017) ("[A] total expenditure of 30 to 35 hours on a Social Security appeal [is] reasonable when no complex issues [are] involved."); Van Dine v. Colvin, No. 15-cv-10140, 2016 WL 7256762, at *2, 2016 U.S. Dist. LEXIS 173614, at *6 (D. Mass Dec. 15, 2016) (stating that 35.95 hours "falls within the normal range for social security cases"); Dowell v. Colvin, No. 13-cv-00246, 2015 U.S. Dist. LEXIS 1128, at *11 (D. Me. Jan. 5, 2015) (noting that "the high end of the range [for a "typical Social Security case"] may be closer to 30 [hours]); see also Destefano v. Astrue, No. 05-cv-03534, 2008 WL 623197, at *4, 2008 U.S. Dist. LEXIS 16504, at *16 (E.D.N.Y. Mar. 4, 2008) ("[T]he total average number of hours spent on a typical Social Security case is between twenty and forty hours."), report and recommendation adopted, 2008 WL 2039471, 2008 U.S. Dist. LEXIS 38095 (E.D.N.Y. May 9, 2008).

Itemized fee statements should be subjected to "enhanced scrutiny" when the hours requested exceed the average range for a typical Social Security appeal. See Traci H., 2018 WL 6716693, at *9, 2018 U.S. Dist. LEXIS 214988, at *22 (quoting Dowell, 2015 U.S. Dist. LEXIS 1128, at *11–12). There is no doubt that 139.1 hours significantly exceeds the average number of hours for a typical Social Security case, but Cano asserts her case is not "routine" as it involved a large record and novel and complex issues. [ECF No. 22 at 6; ECF No. 26 at 4–5].

a. Size of the Record

Cano contends that the number of hours billed for her appeal is justified, in part, by the large size of her administrative record, [ECF No. 22 at 6], which is 1,327 pages, [ECF No. 26 at 4]. In Dowell, the court found that a 422-page record was considered a "relatively small administrative record." 2015 U.S. Dist. LEXIS 1128, at *4, *11. In contrast, in Staples, the court found that a 931-page record was "longer than average." 2017 WL 2570890, at *3, 2017 U.S. Dist. LEXIS 91184, at *8. Using these cases as a guide, the Court determines that the size of Cano's record is longer than average, which provides support for Cano's contention that some allowance should be made to account for the additional time spent...