LEVYASH v. COMMISSIONER OF SOCIAL SECURITY

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

____________________________________

:

IGOR G. LEVYASH :

:

Plaintiff, : Case No. 3:16-cv-2189 (BRM)

:

v. :

: OPINION

CAROLYN W. COLVIN :

Acting Commissioner of Social Security, :

:

Defendant. :

____________________________________:

MARTINOTTI, DISTRICT JUDGE

Before this Court is Igor G. Levyash’s (“Plaintiff”) Motion for Attorney Fees and Costs.

(ECF No. 25.) The Acting Commissioner of Social Security (“Defendant”) opposes the Motion.

(ECF No. 26.) Having reviewed the submissions filed in connection with the Motion, and having

declined to hold oral argument pursuant to Federal Rule of Civil Procedure 78(b), for the reasons

set forth herein, and for good cause shown, Plaintiff’s motion is GRANTED.

I. BACKGROUND

At issue before this Court is whether Plaintiff is entitled to attorney’s fees and costs pursuant

the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. The facts and procedural history of

this matter are set forth in this Court’s prior opinion (ECF No. 23), and need not be repeated here.

The following factual background is pertinent to this motion.

On April 19, 2016, Plaintiff filed a Complaint seeking judicial review of the ALJ’s final

decision denying Social Security Title II Disability Insurance benefits under Title 42 U.S.C. §

405(g). (ECF No. 1 ¶ 3, 5.) Defendant answered the Complaint on August 19, 2016. (ECF No. 5.)

On March 30, 2018, the Court entered an Order reversing and remanding the ALJ’s decision. (ECF

No. 23.) As a result, on June 12, 2018, Plaintiff, as the prevailing party, filed a Motion for Attorney

Fees and Costs. (ECF No. 25.)1 Defendant opposes the Motion. (ECF No. 26.)

II. LEGAL STANDARD

“When the cost of contesting a Government order, . . . exceeds the amount at stake, a party

has no realistic choice and no effective remedy. In these cases, it is more practical to endure an

injustice than to contest it.” Pierce v. Underwood, 487 U.S. 552, 575 (1988) (quoting S.Rep. No.

96–253, p. 5 (1979)). Concerned that the government, with its vast resources, might deter citizens

from defending against, or seeking review of, unreasonable governmental action because of the

threat of costly litigation, Congress enacted the Equal Access to Justice Act (“EAJA”), 28 U.S.C.

§ 2412. Id. Under the EAJA, the United States waived its sovereign and general statutory

immunities to fee awards and created “a limited exception to the ‘American Rule’ against awarding

attorney fees to prevailing parties.” Standowski v. Colvin, No. CV 13-5663 (FLW), 2016 WL

2625029, at *1 (D.N.J. May 9, 2016) (quoting Pierce, 487 U.S. at 575).

The EAJA was designed to rectify the threat of costly litigation by providing an exception

for an award of reasonable attorney’s fee to a prevailing party. Sullivan v. Hudson, 490 U.S. 877,

883–84 (1989). Under the EAJA, a party seeking an award of attorney fees and other expenses in

a civil action or adversary adjudication shall submit to the court an application: (1) within thirty-

days of the final judgment in the action; (2) which includes a reasonable amount sought; (3) which

shows that the party is eligible to receive the award. See 28 U.S.C. § 2412. To be “eligible” under

the EAJA statute, a party must meet the additional requirements enumerated such as: (a) showing

that the party prevailed in the underlying action against the United States; (b) showing the net

1 Plaintiff later supplemented its motion with a fully favorable decision from the ALJ. (ECF No.

31.)

worth of the party did not exceed $2,000,000 at the time the action was filed; and (c) alleging that

the United States in the underlying action was not substantially justified in its position, nor would

special circumstances make an award unjust. Bazalo v. West, 150 F.3d 1380, 1384 (Fed. Cir. 1998);

Kadelski v. Sullivan, 30 F.3d 399, 401 (3d Cir. 1994); see also 28 U.S.C. § 2412. The burden of

showing substantial justification lies with the Government and may not be satisfied by simply

introducing “‘some evidence’ in support of its position.” Washington v. Heckler, 756 F.2d 959,

961 (3d Cir. 1985). Rather, the Commissioner’s position in the underlying action must be justified

in substance that would satisfy a reasonable person. Standowski, 2016 WL 2625029 at *2 (citing

Pierce, 487 U.S. at 565).

III. DECISION

Plaintiff seeks attorney’s fees and costs, as a prevailing party pursuant to the EAJA, 28

U.S.C. § 2412. (ECF No. 25 at 1.) It claims fees are appropriate under the EAJA, which permits

reasonable fees to prevailing parties in action against the United States where the position of the

government was not substantially justified, because the Defendant has failed to show that the

Government’s actions were supported by substantial evidence. (ECF No. 29 at 2.) Plaintiff argues

the Defendant has failed to meet their burden and show the Government’s position was

substantially justified because: (1) the Government’s mistake was not inconsequential or an error

of “articulation”; and (2) the Commissioner erred in failing to follow established precedent. (ECF

No. 29.) Additionally, Plaintiff argues the fees requested are reasonable. (ECF Nos. 25 at 3; ECF

No. 29 at 5-6.)

Defendant contends they have met their burden and shown the Government’s position to

be substantially justified. (ECF No. 26.) Defendant argues: (1) there was evidence in the record

supporting the ALJ’s decision; and (2) the error identified by the Court was one of articulation,

rather than substance. Id. It alternatively claims that if the Court should find the Government’s

actions were not substantially justified that the Plaintiff’s requested attorney fees be reduced for

unreasonableness. Id. at 8-11.

It in undisputed that Plaintiff applied within thirty-days of the final judgment, is a

prevailing party, and is within the net worth necessary to be eligible for attorney fees under the

EAJA. (See ECF Nos. 25 and 26.) The only issues before this Court are: (1) was the position of

the United States in the underlying action substantially justified; and (2) is the amount sought

reasonable.

A. The Government was Not Substantially Justified

The Defendant argues that the Government’s position was substantially justified. Firstly,

the Defendant claims that in considering the Plaintiff’s arguments the court found for the

Defendant on six of the seven claims. (ECF No. 26 at 1.) Secondly, the Defendant claims that

evidence existed in the record to support the ALJ’s decision was reasonably based in both law and

fact. Id. at 1-2. Finally, the Defendant claims the error identified by the Court was one of

articulation rather than substance. Id. at 2.

Substantial justification constitutes the middle ground between an automatic award of fees

and “an award made only when the government's position was frivolous.” Washington, 756 F.2d

at 961 (citing Dougherty v. Lehman, 715 F.2d 555, 563 n.12 (3d Cir. 1983)). The burden of

showing substantial justification lies with the Government. Id. In order to meet its burden, the

Government must show that the government’s position contained: “(1) a reasonable basis in truth

for the facts alleged; (2) a reasonable basis in law for the theory it propounded; and (3) a reasonable

connection between the facts alleged and the legal theory advanced.” Id. Though the Government

may satisfy its’ burden even where the court remands the ALJ’s decision, the government will not

meet its burden by merely providing some evidence in support to its position. Id.; Standowski,

2016 WL 2625029 at *2 (citing Morgan v. Perry, 142 F.3d 670, 685 (3d Cir. 1998)). When the

Government’s legal position offends established precedent, its position cannot be said to be

substantially justified. Washington, 756 F.2d at 962.

An ALJ’s decision may be reasonably based in both law and fact even if the Court rejects

the Government’s position. Serpe v. Astrue, No. CV 12-570-LPS, 2015 WL 849568, at *2 (D. Del.

Feb. 24, 2015) (citing Jackson v. Chater, 94 F.3d 274, 279–80 (7th Cir. 1996)). The Government

will satisfy its’ burden of substantial justification if the ALJ cited to some evidence in the record.

Id. An ALJ who applies the correct law, but provides insufficient facts or reasoning to support her

conclusion does not lack substantial justification. Standowski, 2016 WL 2625029, at *3 (quoting

Washington, 756 F.2d at 962). Additionally, an ALJ’s decision may be substantially justified if the

error is inconsequential. Williams v. Astrue, 600 F.3d 299, 302 (3d Circ. 2009). An error is

considered inconsequential if the ALJ had the ability to reach the same conclusion on remand

based on other evidence in the record. Id.; see also Johnson v. Comm’r of Soc. Sec., 529 F.3d 198,

204 (3d Cir. 2008).

However, the court has repeatedly ruled that the failure of the Government to develop the

record to be a substantial error of law which is not substantially justified. See, e.g., Diaz v.

Commissioner of Social Sec., 410 Fed. Appx. 430, 433 (3d Cir. 2010) (“The clearly established

case law . . . required the ALJ to develop the record sufficient to permit meaningful appellate

review. . . . As a result of the ALJ’s failure to develop the record here and to follow our precedent,

. . . [w]e thus conclude that the Government lacked substantial justification for its decision.”);

Fargnoli v. Massanari, 247 F.3d 34, 43–44 (3d Cir. 2001) (“The ALJ makes no mention of any of

these significant contradictory findings, leaving us to wonder whether he considered and rejected

them, considered and discounted them, or failed to consider them at all . . . . We therefore cannot

conclude that his findings at step four were supported by substantial evidence.”); Cotter v. Harris,

642 F.2d 700, 704–05 (3d Cir. 1981) (“[U]nless the Secretary has analyzed all evidence and has

sufficiently explained the weight he has given to obviously probative exhibits, to say that his

decision is supported by substantial evidence approaches an abdication of the court’s duty . . . .”)

(quoting Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir. 1979)); Centeno v. Comm’r of Soc. Sec.,

No. CIV. 096023 AET, 2011 WL 810970, at *2 (D.N.J. Mar. 2, 2011) (“[T]he ALJ’s failure to

develop the record was tantamount to a failure to substantially justify the position taken as to

Plaintiff's disability application. Because the government's position was not substantially justified,

attorneys’ fees are appropriate.”); Ransom-Freeman v. Berryhill, No. 16-CV-01315, 2018 WL

2010582, at *3 (E.D. Pa. Apr. 30, 2018) (“The legal requirements that the ALJ base his or her

decision on substantial evidence . . . , consider contradictory evidence, and do both in such a way

that a court can exercise meaningful review, are basic and well known.”).

The ALJ is required, per established precedent, to develop the record sufficient to permit

meaningful appellate review. Diaz, 410 F. App’x at 433. An administrative decision should be

accompanied by sufficient facts and reasoning to support the ALJ’s conclusion. Cotter, 642 F.2d

at 704–05. A statement of facts and reasons helps to avoid judicial usurpation of administrative

functions, assures more careful administrative consideration, and allows appellate court to perform

its stator function of judicial review. Id. (citing K. Davis, 2 Administrative Law Treatise s 16.05

(1958)). Although the ALJ may weigh the credibility of the evidence, he must still provide some

indication of the evidence which he rejects and his reasons for discounting such evidence. Burnett

v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000) (citing Cotter, 642 F.2d at 705

(“In the absence of such an indication, the reviewing court cannot tell if significant probative

evidence was not credited or simply ignored.”))). Nor may the Defendant support the

Government’s position through evidence not cited in the record. Diaz, 410 F. App’x at 433 (citing

Fargnoli, 247 F.3d at 44 (“[T]he grounds upon which an administrative order must be judged are

those upon which the record discloses that its action was based.”)).

The Government was not substantially justified. First, the fact that the Court found for the

Defendant on six of the Plaintiff’s arguments is not indicative of the Government’s substantial

justification for the seventh. The substantial justification of the Government for opposing one of

the Plaintiff’s claims does not justifying its opposition for another claim. Hanover Potato Prod.,

Inc. v. Shalala, 989 F.2d 123, 131 (3d Cir. 1993) (citing Goldhaber v. Foley, 698 F.2d 193, 197

(3d Cir. 1983)). Secondly, the issue of the skill level of the Plaintiff’s prior work is not an issue of

“articulation” and inconsequential to the outcome of the case. Indeed, the case was decided on the

classification of the Plaintiff’s prior work and remedying the legal error may change the ultimate

outcome. Diaz, 410 F. App’x 433. Finally, although the Defendant argues there exists sufficient

additional evidence by which the ALJ could have come to the same conclusion, the Third Circuit

has previously stated that the “general principles of administrative law preclude the

Commissioner’s lawyers from advancing grounds in support of the agency’s decision that were

not given by the ALJ.” Jones v. Comm’r of Social Sec., Civil No. 11–748(FLW), 2012 WL 628510

at *9 (D.N.J. Feb.27, 2012) (quoting Diaz, 410 F. App’x at 433). Accordingly, Defendant’s request

for attorneys’ fees pursuant to the EAJA is GRANTED.

B. The Attorney Fee Costs Are Reasonable

The Defendant alternatively argues that the Plaintiff’s requested attorney fees be reduced

for unreasonableness for hours claimed. (ECF No. 26 at 8.) The reasonableness of the Plaintiff’s

hourly rate is undisputed. (ECF No. 26 at 14.) Attorney’s fees may be awarded only to the extent

that both the number of hours expended and the hourly rate are reasonable. Hensley v. Eckerhart,

461 U.S. 424, 433 (1983). The burden of showing reasonableness for the hours claimed lies with

the petitioner. See Interfaith Community Organization v. Honeywell, 426 F.3d 694, 703 n.5 (3d

Cir. 2005) (citing Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)). To satisfy the

burden, the petitioner must provide “evidence supporting the hours worked and rates claimed.” Id.

(quoting Hensley, 461 U.S. at 433).

A party seeking attorney fees “should make a good-faith effort to exclude from a fee

request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private

practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S.

at 434. The court may, in its discretion, reduce or deny the amount to be awarded hours which

were unreasonable in conduct. See 28 U.S.C. § 2412; Rode, 892 F.2d at 1183. However, “the

district court may not award less in fees than requested unless the opposing party makes specific

objections to the fees requested.” United States v. Eleven Vehicles, Their Equip. & Accessories,

200 F.3d 203, 211 (3d Cir. 2001). Here, the Defendant has raised no issue with the records

provided. (ECF No. 26.)

Courts should look to awards previously granted in the same area to determine the

reasonableness of the requested fee. Eleven Vehicles, 200 F.3d at 218. (Alito, J., concurring); see,

e.g., Gonzalez v. Astrue, 564 F. Supp. 2d 317, 320 (D.N.J. 2008) (awarding the Plaintiff $23,873.85

for 143 hours, post a 5% voluntary reduction, for 62 page brief, 30 page reply, motions, and filings,

including 42 hours on subjects in which Plaintiff was of great expertise); Chonko v. Comm’r of

Soc. Sec. Admin., 624 F. Supp. 2d 357, 361 (D.N.J. 2008) (awarding $15,182.96, after voluntary

reduction, for 55.5 hours of initial litigation, 15.75 hours drafting and filing reply, and 15 hours

working on a surreply); McCaley v. Barnhart, Civ. No. 01–4953(DRD) (D.N.J. Sept.19, 2005)

(awarding the Plaintiff $19,879.57 for 65.75 attorney hours and 124.45 law student hours involving

a 64–page appellate brief and 310–page appendix.); Walton v. Massanari, 177 F. Supp. 2d 359,

363–365 (E.D. Pa. 2001) (awarding approximately $25,410 for 180 hours of attorney hours for

SSA case upheld at the Third Circuit). Generally, courts have found hours that are duplicative or

far above the norm to be unreasonable. See, e.g., Gillem v. Astrue, CIV. 06-6184 (WJM), 2008

WL 1925302, at *1–2 (D.N.J. Apr. 30, 2008). Additionally, courts have found a brief that took

more than three hours per page to be excessive and unreasonable. Maldonado, 256 F.3d at 183,

186. However, some district courts have suggested that twenty to forty hours to be reasonable,

absent complications, for an average Social Security matter. See Menter v. Astrue, 572 F. Supp.

2d 563, 565 (D.N.J. 2008) (citing Gillem, 2008 WL 1925302 at *2).

The Plaintiff’s hours do not appear to be excessive or unreasonable. The Plaintiff has

requested roughly twenty-six hours on a thirty-two-page brief, roughly forty-nine minutes per

page, and roughly six hours for the Plaintiff’s eleven-page reply, roughly thirty-two minutes per

page. (ECF Nos. 15 and 26.) All of Plaintiff’s requested hours are far below the excessive standard

of three hour’s per page. Maldonado, 256 F.3d at 183, 186. Though the Defendant has made the

argument that the time should be shortened, the Defendant has provided little evidence by which

to presume that the Plaintiff’s time was either excessive or unreasonable. (ECF No. 26) The fact

that in other circumstances Plaintiff, or another in Plaintiff’s shoes, may have been able to provide

the same service at a cheaper cost does not make Plaintiff’s hours excessive. Gillem, 2008 WL

1925302 at *1-2. Without more evidence to suggest otherwise, the fact that the Plaintiff has already

removed hours from his bill, which he thought to be excessive, redundant, or otherwise

unnecessary would suggest that none of the Plaintiff’s remaining hours to be an excessive

repetition of tasks. (ECF No. 29 at 9.) Though Defendant has argued that the Plaintiff’s reply is

nearly identical to a reply done for another of the Plaintiff’s cases, the Plaintiff’s time would not

appear to be repetitive of any work done for this current case, see Highsmith v. Barnhart,

CIV.A.04-801, 2006 WL 1582337, at *6 (E.D. Pa. June 7, 2006) (finding defendant’s request to

reduce plaintiff’s six-hours spent on plaintiff's reply to four-hours for repetition to be without

merit, because plaintiff’s reply specifically addressed arguments raised by defendant), nor are

Plaintiff’s hours excessive compared to average cases. See, e.g., Menter, 572 F. Supp. 2d at 565.

Additionally, the Defendant claims that Plaintiff’s hours should be reduced because six of

his seven claims were found to be without merit. (ECF No. 26 at 9.) Hours spent on unsuccessful

related claims may still be billable. Hensley, 461 U.S. at 440. Related claims are those that involve

a common core of facts, or related legal theories, and whose pursuit represents sound legal

judgment. Id. at 435; City of Riverside v. Rivera, 477 U.S. 561, 579, (1986). However, courts are

vested with broad discretion to determine appropriate and reasonable attorney fees and should

award only that amount of fees that is reasonable in relation to the results obtained. Hensley, 461

U.S. at 440 (“[A] plaintiff who has won substantial relief should not have his attorney's fee reduced

simply because the district court did not adopt each contention raised. But where the plaintiff

achieved only limited success, the district court should award only that amount of fees that is

reasonable in relation to the results obtained.”). Although six of the seven claims may have been

found to be without merit, the Defendant has provided no argument to suggest that these claims

were unrelated to the common core of facts or legal theories. (ECF No. 26.) In reviewing the

Plaintiff’s hours, it appears to this Court that the hours billed are reasonable in relation to the results

obtained.

IV. CONCLUSION

For the reasons set forth above, Plaintiff’s Motion for Attorney’s Fees and Costs (ECF No.

25) is GRANTED.

Date: June 4, 2020 /s/ Brian R. Martinotti___________

HON. BRIAN R. MARTINOTTI

UNITED STATES DISTRICT JUDGE