failed to develop a full and fair record concerning the mental impairment brought to his attention. The Secretary has not addressed any of the arguments made by Petrella.
The Secretary relies solely upon his argument that his position was substantially justified under the prior regulations. In support of his position the Secretary plainly asserts that the new regulations were directed at chronically mentally ill individuals who may not exhibit overt symptoms at the time they are evaluated for social security purposes, but who have a long history of mental illness with periods of exacerbations and remission. It is true that the new regulations do take these factors into consideration. However, the Secretary has not shown how these factors affected this case. The Secretary did not specifically or even generally state how a finding of disability under the new regulations could be made in this case but not under the old regulations. Conclusory statements do not satisfy the Secretary's heavy burden of making a strong showing that his position was substantially justified. Tressler v. Heckler, 748 F.2d 146, 150 (3d Cir. 1984); Natural Resources Defense Council v. United States Env. Prot. Agency, 703 F.2d 700, 712 (3d Cir. 1983). Because the Secretary has failed to address any of the arguments raised by counsel for Petrella and to support adequately his own argument, he has not satisfied his burden of showing that his position had a reasonable basis both in law and in fact. We will grant Petrella's motion for attorney's fees pursuant to the Equal Access to Justice Act.
Counsel for Petrella seeks an award of $75.00 per hour pursuant to the Equal Access to Justice Act for the 11.25 hours spent in this court on this matter, a total fee of $843.75. We have reviewed the file in this case and conclude that counsel's requested fee of $843.75 is reasonable and should be awarded. See Cunningham v. City of McKeesport, et al., 753 F.2d 262 (3d Cir. 1985).
We will now consider Petrella's attorney's claim for fees pursuant to § 406(b)(1) of the Social Security Act.
Petrella and her lawyer, Joseph Rattman, entered into a fee agreement which provides that Rattman shall be compensated 25% of any sums realized from an award of benefits. 42 U.S.C. § 406(b)(1) gives this Court discretion to determine what is a reasonable attorney's fee even where there exists a contingent fee agreement between the claimant and his counsel. McKitterick v. Gardner, 378 F.2d 872 (4th Cir. 1967).
In this case, 25% of the past due benefits is $3,607.90. Counsel requests a total fee of $1,687.50 which represents a fee of $150.00 per hour for the 11.25% hours spent in this case. Because we have awarded counsel $843.75 pursuant to the Equal Access to Justice Act, we are considering here whether an additional award of $843.75 should be paid pursuant to the Social Security Act. Counsel contends that an hourly fee of $150.00 is reasonable in light of the time expended, skill required, amount in controversy, and fees awarded in similar cases. He states that he requests a fee of $150.00 per hour instead of his normal hourly rate of $100.00 per hour to represent clients in federal court because of the contingency fee agreement in this case.
For the following reasons it is our view that the request for a fee of $150.00 is unreasonable. The proper method of computation of benefits was not disputed. This was not a complicated case which required extraordinary skill. Petrella's counsel filed a complaint and a motion to remand which was concurred in by the Government. No further motions or briefs were necessary because of the Secretary's concurrence in the remand motion. Petrella has not shown that an hourly rate of $150.00 is typical of fees awarded in similar cases. Indeed, fees tend to range from $50.00 to $100.00 per hour in social security disability cases. See Losco v. Bowen, 638 F. Supp. 1262, 1263 (S.D. N.Y. 1986) wherein the court reviewed hourly fees awarded under § 406 of the Social Security Act from several district courts.
In light of the quality of the brief counsel filed in support of his motion and in light of counsel's normal fee for representing a party in federal court, an hourly fee of $100.00 is a reasonable fee in this case. We have already awarded counsel $75.00 per hour for his representation pursuant to the Equal Access to Justice Act. We shall award him an additional $25.00 per hour pursuant to the Social Security Act to be paid from Petrella's past due benefits.
NOW, THEREFORE, IT IS ORDERED THAT:
1. The Secretary of Health and Human Services shall pay Joseph Rattman an attorney's fee in the amount of $281.25 for services performed before this Court pursuant to 42 U.S.C. § 406(b)(1) within 60 days of the date of the order.
2. The Secretary shall pay Joseph Rattman an attorney's fee in the amount of $843.75 pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A), within 60 days of the date of this order.
3. The Clerk of Court shall close this case.
© 1992-2004 VersusLaw Inc.