Rosario v. Commissioner of Social Security

Background

Andres Gabino Rosario sued under 42 U.S.C. § 405(g) for review of the Commissioner of Social Security’s decision denying his application for disability benefits. Rosario’s attorney filed a motion for judgment on the pleadings, but the parties later entered a court-approved stipulation. On May 27, 2022, the court remanded the case to the Commissioner for further proceedings under sentence four of § 405(g).

Rosario’s counsel, Daniel Berger, then moved for attorney’s fees under the Equal Access to Justice Act (EAJA), a federal law that can require the United States to pay reasonable litigation fees when the statutory requirements are met. The motion initially sought $10,071.80. On reply, counsel corrected the hourly rate for work performed in 2021 and added 3.7 hours for reviewing the Commissioner’s opposition and preparing the reply, resulting in a total request of $10,882.62.

Court’s Analysis

The Commissioner did not dispute that the EAJA requirements were satisfied or argue that awarding fees would be unjust. The court therefore focused on whether the requested hourly rates and hours were reasonable.

The court accepted the requested hourly rates, including $217.54 for three hours of attorney work in 2021, $226 for attorney work in 2022, and $100 for paralegal work. The court found the rates reasonable after reviewing the cost-of-living information.

The court concluded, however, that the total hours were excessive. The administrative record was approximately 1,232 pages, but the case involved issues commonly raised in Social Security proceedings, and the case was remanded after only the opening brief was filed. The court also noted that Berger had prior involvement in the administrative proceedings and therefore had familiarity with the case.

The court refused to award fees for the additional 3.7 hours spent preparing the reply because counsel did not provide the required contemporaneous time records. The court also found unreasonable four 12-minute calls described generally as case updates. It allowed 18 minutes spent explaining the remand and future procedures to Rosario. Of the 0.7 hours related to extension requests, the court found 0.4 hours for drafting and filing four letters reasonable but found 0.3 hours for reviewing short, uncomplicated court orders excessive.

Rather than examine every time entry separately, the court applied a 10% reduction to the remaining fee request of $10,046.42. That calculation excluded the rejected 3.7 reply hours.

Ruling

Judge Judith C. McCarthy granted in part and denied in part Rosario’s motion for EAJA attorney’s fees. The court awarded $9,041.78, payable directly to Daniel Berger, because Rosario had assigned any entitlement to the fees to his attorney and the Commissioner did not object to direct payment.