BELLAMY

v.

COMMISSONER OF SOCIAL SECURITY

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S PETITION FOR ATTORNEYS’ FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT [DE 46]

THIS CAUSE is before the Court upon Plaintiff, Joshua L. Bellamy’s (“Plaintiff”) Petition for Attorneys’ Fees Pursuant to the Equal Access to Justice Act (“Motion”) [DE 46]. Defendant, Andrew M. Saul, Commissioner of Social Security (“Defendant” or “the Commissioner”), has filed a response [DE 50], and Plaintiff has filed a reply [DE 56]. This matter is ripe for review.

I. BACKGROUND

On January 23, 2018, Plaintiff filed a Title II application for a period of disability and disability insurance benefits and a Title XVI application for supplemental security income, asserting a disability on-set date of December 20, 2016. [DE 12, p. 23]. The claims were denied initially and upon reconsideration. Id. Following a hearing on April 15, 2019, the ALJ issued a partially favorable decision on August⁷, 2019. Id. at pp. 20-35. A request for review was filed by Plaintiff with the Appeals Council and denied on September 23, 2019. Id. at pp. 11-13.

On November 18, 2019, Plaintiff filed a Complaint with this Court. [DE 1]. The Court later entered an Order Granting Plaintiff’s Motion for Referral to Volunteer Attorney Program. [DE 21]. Plaintiff’s current counsel made an appearance in the case on July 30, 2020. [DEs 22, 23]. After additional litigation, including unsuccessful motions to remand and to amend the Complaint filed by Plaintiff, on October⁵, 2020, Plaintiff filed his Motion for Summary Judgment [DE 31], arguing that the ALJ’s decision in denying the disability application should be reversed and remanded. Id. Defendant filed a cross-motion for summary judgment [DE 35].

On March⁵, 2021, the undersigned entered an Order on Motions for Summary Judgment [DE 44], granted Plaintiff’s motion for summary judgment, denied Defendant’s motion for summary judgment, and remanded to the Commissioner under Sentence Four of 42 U.S.C. § 405(g). The Court then entered a Judgment in favor of Plaintiff and against the Commissioner. [DE 45]. Thereafter, Plaintiff filed the pending Motion. Plaintiff has also filed a Notice of Appeal [DE 53]. The Court has carefully reviewed the Motion, the attached Declarations, Defendant’s response, and Plaintiff’s reply. Plaintiff is seeking an award of attorney’s fees in the amount of $30,054.88. [DE 46, p. 1].

Plaintiff asserts that he has met the burden necessary to receive EAJA fees because Plaintiff’s net worth did not exceed $2,000,000.00 when this Court reversed the decision of the Social Security Administration, judgment was entered, Plaintiff has prevailed, and the Commissioner’s position was not substantially justified. Id. at pp. 3-4. Plaintiff also contends that the hourly EAJA fee can be adjusted upwards for cost of living and requests an increase to the EAJA hourly rate in the amount of $226.25. [DE 20, pp. 4-8]. According to the Declaration of Joseph A. DiRuzzo, III, Esq. [DE 46-1], he spent 6.6 hours litigating Plaintiff’s case. According to the Declaration of Daniel M. Lader, Esq. [DE 46-2], he spent 124.7 hours litigating Plaintiff’s case. Plaintiff also argues he is entitled to fees for drafting his pending Motion. [DE 46, pp. 13-14].

II. ENTITLEMENT TO ATTORNEY’S FEES This dispute is governed by the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. The EAJA states in pertinent part: “[A] court shall award to a prevailing party other than the United States” a reasonable attorney’s fee and costs “incurred by that party in any civil 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.”

See Taylor v. Heckler, 778 F. 2d 674, 675 (11th Cir. 1985) (quoting 28 U.S.C. § 2412(d)(1)(A)). Under the EAJA, a party is entitled to an award of attorney’s fees if: (1) the party prevailed in a non-tort suit involving the United States; (2) the Government’s position was not substantially justified; (3) the party timely files an application for attorney fees; (4) the party had a net worth of less than $2 million when the complaint was filed; and (5) no special circumstances would make the award of fees unjust. 28 U.S.C. § 2412(d); Delaney v. Berryhill, No. 17-81332-CIV, 2018 WL 7820219, at *1 (S.D. Fla. Nov. 14, 2018).

First, the law is clear that a plaintiff in a social security appeal prevails if the court orders a sentence-four remand. Shalala v. Schaefer, 509 U.S. 292, 300-02 (1993).

Second, an EAJA request is timely if it is made within 30 days of the final judgment, which, if no appeal is taken, is 90 days from the judgment’s entry. See 28 U.S.C. § 2412(d)(1)(B) & (d)(2)(G) (“final judgment” is judgment that is final and not appealable); Fed. R. App. P. 4(a)(1)(B) (notice of appeal must be filed within 60 days of judgment in case in which United States is party). Here, on March⁵, 2021, the Court entered an Order on Motions for Summary Judgment [DE 44]. The Court also entered a Judgment in favor of Plaintiff and against the Commissioner on March⁵, 2021. [DE 45]. The Motion was filed on April 14, 2021; thus, it is timely.

Third, an EAJA motion must allege that the Commissioner’s position was not substantially justified, Comm’r, I.N.S. v. Jean, 496 U.S. 154, 160 (1990), and then the Commissioner bears the burden to show that it was, U.S. v. Jones, 125 F. 3d 1418, 1425 (11th Cir. 1997). Here, the Motion alleges that the Commissioner’s position was not substantially justified. In response, the Commissioner does not argue that his position throughout the case was substantially justified, but he rather contends that the Commissioner’s positions opposing certain of Plaintiff’s motions [DE 28, 33] were substantially justified. See DE 50, pp. 4-6. Therefore, the Commissioner’s argument really goes to the number of hours reasonably expended by Plaintiff rather than to whether Plaintiff is entitled to any EAJA fees. Finally, Plaintiff has filed a Declaration [DE 46-6] averring that his net worth was less than $2 million when he filed the case, and the Commissioner does not attempt to show otherwise. The Court, therefore, finds that the first four conditions are met, and no special circumstances would make the award of fees unjust. Thus, Plaintiff is entitled to receive an EAJA award. III. REASONABLENESS OF ATTORNEY’S FEES CLAIMED

Next, attorney’s fees requested pursuant to the EAJA must be reasonable and “shall be based upon prevailing market rates for the kind and quality of the services furnished, except that …attorney fees shall not be awarded in excess of $125 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.” 28 U.S.C. § 2412(d)(2)(A).

The Eleventh Circuit defines a “reasonable hourly rate” as “the prevailing market rate in the relevant legal community for similar services by attorneys with reasonably comparable skills, experience, and reputation.” Norman v. Hous. Auth. Of the City of Montgomery, 836 F. 2d 1292, 1299 (11th Cir. 1988) (citing Blum v. Stenson, 465 U.S. 895-96, n.11 (1984)). “The applicant bears the burden of producing satisfactory evidence that the requested rate is in line with prevailing market rates.” Blanco v. Saul, No. 18-21584-CIV, 2020 WL 7079164, at *2 (S.D. Fla. Oct. 20, 2020), report and recommendation adopted, No. 18-21584-CIV, 2020 WL 7074638 (S.D. Fla. Dec. 3, 2020) (quoting Norman, 836 F. 2d at 1302 (internal citation omitted)).

A. Hourly Rate

In his Motion, Plaintiff asserts that his attorneys’ hourly rate of $226.25 is reasonable and accounts for the cost of living increase. Plaintiff has come up with a seemingly novel formula utilizing the applicable CPI data for the metro area of “Miami-Fort Lauderdale-West Palm Beach, FL,” available at https://www.bls.gov/cpi/regional-resources.htm. He calculates an attorney billing rate of $226.25 per hour for work completed in 2020 and work completed in 2021, yet he applies the CPI for the South Florida metro region from the month of February 2021 only. The calculation Plaintiff uses is shown below: 275.849 CPI for All Urban Consumers (CPI-U), February

2021 ÷152.4 CPI for All Urban Consumer (CPI-U), March 1996 = 1.81 Multiplier based on Increased Cost-of-Living x $125 EAJA Statutory Limit set in March 1996 =$226.25 Requested Hourly Rate for Attorneys’ Fees

In response, Defendant objects to this hourly rate and argues that it is “not within the range of market rates for South Florida attorneys who represent plaintiffs in similar actions. The

Commissioner contends that Plaintiff should be compensated at an hourly rate of no more than $207.78 for compensable work performed in 2020 and a rate of no more than $210.58 for compensable work performed in 2021.” [DE 50, p. 6]. The Commissioner cites to the U.S. Bureau of Labor Statistics CPI Inflation Calculator at https://www.bls.gov/data/inflation_calculator.htm. In reply, Plaintiff argues that Defendant refused to confer to reach an agreed hourly rate, that Plaintiff has provided a clear formula for his calculated hourly rate, and that Defendant has waived any objections to the rate. [DE 56, pp. 8-9]. The EAJA provides that attorneys’ fees “shall be based upon prevailing market rates for the kind and quality of the services furnished” but “shall not be awarded in excess of $125 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.” 28 U.S.C. § 2412(d)(2)(A).Thus, the EAJA expressly provides for a cost of living adjustment. Sensat v. Berryhill, No. 15-24727-CIV-SIMONTON, 2018 WL 5257143, at *6 (S.D. Fla. Oct. 22, 2018).

When work is performed over the course of several years, the hourly rate should be calculated to correspond to the cost of living for each year that the work was performed, not the rate at the time when the award is made. Sensat, 2018 WL 5257143, at *6 (collecting cases).

The “hourly rate should be calculated to correspond to the rate for the year that the work was performed, not the rate for the year that the application was made or when work was completed.” De La Caridad Brito v. Saul, No. 19-CV-22911, 2020 WL 7248247, at *2 (S.D. Fla. Nov. 9, 2020), report and recommendation adopted, No. 1:19-CV-22911-KMM, 2020 WL 7241360 (S.D. Fla. Dec. 9, 2020) (citing Sensat, 2018 WL 5257143, at *6.).

As to the first step, based on the undersigned’s own knowledge and expertise, the market rate in South Florida for services by lawyers of comparable skills, experience, and reputation exceeds $125 an hour. Next, courts and the plaintiffs in this district widely utilize the Consumer Price Index for All Urban Consumers (“CPI–U”) to determine the cost of living increase. Plaintiff is, instead, using the Consumer Price Index specifically for “Miami-Fort Lauderdale-West Palm Beach, FL.” Thus, the CPI index selected by Plaintiff is specific to South Florida’s cost of living.

However, the Court must still consider Plaintiff’s requested rate compared to the prevailing market rate in this district for similar services by lawyers of reasonably comparable skills, experience, and reputation. While Plaintiff’s formula does not appear on its face to be incorrect and there is no applicable case law that specifically precludes the use of a local cost of living index1, the formula utilized by Plaintiff results in a rate that clearly exceeds the market rate in South Florida for services by lawyers of comparable skills, experience, and reputation. A second problem with Plaintiff’s formula is that he calculated the entire fee based on the index for a single month (February 2021), which is improper based on the above-cited case law. While Plaintiff has cited a plethora of case law regarding the calculation of a proper rate in social security cases, he has not cited cases from the Southern District of Florida, or even from the Eleventh Circuit, which directly support his requested rate or the use of the specific index he utilized. Plaintiff makes the conclusory argument in his Motion that “[t]he prevailing market rate for the type and quality of services undersigned counsel provided exceeds the CPI-U adjusted rate of $226.25; thus, Plaintiff requests an award of fees in the amount of $30,054.88.” [DE 46, p. 8]. Plaintiff also states in a footnote in the Motion, To the extent the SSA disputes the rate, Plaintiff will provide an affidavit illustrating that the ‘prevailing market rates for the kind and quality of the services furnished’ in the South Florida metropolitan areas of Fort Lauderdale, Miami, and West Palm Beach exceed the $125 statutory limit after upward adjustments for the CPI-U, 28 U.S.C. § 2412(d)(2)(A), and that each of the undersigned who worked on this case are regularly billed at rates exceeding such.

However, the Court can take judicial notice of the CJA rate, which is currently $155.00 per hour. 1 See Parrott v. Shulkin, 851 F. 3d 1242, 1249 (Fed. Cir. 2017) (“After considering the statutory text and the relevant cases, we think the local CPI approach, where a local CPI is available . . . is more consistent with EAJA than the national approach.). Id. at p.

4.

However, no affidavit was ever filed in support of the requested hourly rate, and Plaintiff has provided no evidence whatsoever in either the Motion or the reply to support his assertion that $226.25 is a proper and reasonable rate in a social security case in this district.

Moreover, this Court knows, through its own knowledge and expertise, that this rate is too high. The Court finds such hourly rate to be unreasonable and excessive under the facts of this case. The Court has independently reviewed applicable and recent case law. Courts in this district have consistently awarded lower rates than that requested by Plaintiff. See, e.g., Adams v. Saul, No. 18-CV-24920, 2020 WL 5913430, at *3 (S.D. Fla. Sept. 18, 2020), report and recommendation adopted, No. 18-24920-CIV, 2020 WL 5912321 (S.D. Fla. Oct. 6, 2020);

Sanchez v. Saul, No. 1:18-CV-24870-KMM, 2020 WL 6323962, at *3 (S.D. Fla. Sept. 8, 2020), report and recommendation adopted, No. 1:18-CV-24870-KMM, 2020 WL 6321954 (S.D. Fla. Oct. 28, 2020) (awarding a billable rate of $205.25 in 2020); Castro v. Comm'r of Soc. Sec., No. 19-80918-CIV, 2020 WL 4015498, at *2 (S.D. Fla. July 16, 2020) (finding that $205.25 is a reasonable hourly rate); De La Caridad Brito, 2020 WL 7248247, at *2 (compensating Plaintiff’s counsel at an hourly rate of $206.77 for work performed in 2020). The Court also emphasizes that neither of Plaintiff’s lawyers has any real expertise in social security law, see DEs 46-1, 46-2, and that even attorneys who do have great expertise in social security law receive lower rates in this district.

The Court will adopt Defendant’s suggested rates of $207.78 for compensable work performed in 2020 and $210.58 for compensable work performed in 2021. In fact, these rates are slightly higher (by a few dollars per hour) than those generally awarded in social security appeal cases in the Southern District of Florida. The Court finds those rates to be fair and reasonable under the facts of this case. In sum, based on the above factors and based upon the Court’s own knowledge and expertise in the award of attorney’s fees, the Court finds that the following rates are reasonable and appropriate—$207.78 for compensable work performed in 2020 and $210.58 for compensable work performed in 2021.

B. Hours Expended

With regard to the hours expended, Plaintiff’s counsel’s Affidavit includes detailed descriptions of the services performed and the time spent on each service. [DE 46-1]. Plaintiff’s counsel billed a total of 131.3 hours between July 30, 2020 and March 31, 2021. Id. Only 22.4 of the hours billed were billed in 2021. In response, Defendant argues that Plaintiff is seeking unnecessary and excessive hours. [DE 50, p. 3]. Defendant additionally contends that Plaintiff should be unable to recover fees for motions that were unsuccessful—the motion for remand and the motion to amend the complaint. Id. at p.

4. According to Defendant, Plaintiff’s counsel expended at least 53 hours on those two motions. Id.

Furthermore, Defendant believes its positions in opposing those motions were substantially justified. Id. at pp. 5-6.

Finally, Defendant points out that Plaintiff’s attorneys have improperly combined billing events. Id. at p.