IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

GUISEPPE FRICANO,

Plaintiff,

v.

CAROLYN W. COLVIN, Acting

Commissioner of Social

Security,

Defendant.

Case No. 12 C 4353

Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Plaintiff Giuseppe Fricano (“Fricano”) filed this lawsuit

seeking review of a final decision of the Commissioner of Social

Security (the “Commissioner”) denying his application for

disability benefits. After Fricano moved for summary judgment,

the parties stipulated to a remand pursuant to sentence four of

Section 405(g) of the Social Security Act, 42 U.S.C. § 405(g). 

ECF No. 17. Accordingly, the Court entered judgment in favor of

Fricano and remanded the matter for further proceedings before

the Social Security Administration. ECF No. 20.

Fricano, who was represented in this action by Frank G.

Tuzzolino, Esq., now seeks an award of attorneys’ fees and costs

pursuant to the Equal Access to Justice Act (the “EAJA”), 28

U.S.C. § 2412. The Commissioner opposes that application on

grounds that (1) Mr. Tuzzolino spent an unreasonable amount of
time working on the case, (2) Fricano has not demonstrated that

Mr. Tuzzolino is entitled to a cost of living increase above the

statutory rate of $125 per hour, and (3) any EAJA award should be

payable to Fricano directly, rather than to Mr. Tuzzolino, so as

to allow the Treasury Department an opportunity to determine

whether the amount should be offset by any outstanding debts

Fricano may owe the federal government. 

Under the EAJA, a court may award reasonable attorneys’ fees

and costs to the prevailing party in a civil suit against the

United States to the extent that the government’s position in the

litigation was not “substantially justified” and there are no

special circumstances that would make an award unjust. 28 U.S.C.

§ 2412(d)(1)(A). By virtue of the remand order, Fricano is the

prevailing party, Shalala v. Schaefer, 509 U.S. 292, 302 (1993),

and there are no special circumstances alleged that would render

an award of fees improper.

The fee to which a prevailing party is entitled under the

EAJA is calculated by multiplying the number of hours reasonably

expended on the case by the attorney’s reasonable hourly rate. 

Comm’r of Immigration and Naturalization Serv. v. Jean, 496 U.S.

154, 161 (1990). In determining whether a fee is reasonable, the

Court considers the time, labor, and level of skill required by

the case, among other factors, such as the overall complexity of

the matter, the amount at stake, the result obtained, awards in

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similar cases, and the attorney’s experience, ability, and

reputation. See, Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). 

Fricano’s time records indicate that Mr. Tuzzolino devoted

a total of 48.25 hours to the case, inclusive of his work

briefing the present application for fees. Based upon the

applicable cost of living adjustments set forth in the Bureau of

Labor Statistics Consumer Price Index, Fricano seeks

reimbursement for Mr. Tuzzolino’s work at a rate of $186.43 per

hour. In addition to his attorney’s fees, Fricano incurred

$350.00 in filing fees and $17.85 in costs for certified mail. 

Based upon these amounts, Fricano seeks to recover a total of

$9,363.10.

Mr. Tuzzolino’s time charges are consistent with those in

comparable social security disability cases. See, e.g., Schulten

v. Astrue, No. 08 C 1181, 2010 WL 2135474, at *6 (N.D. Ill. May

28, 2010) (collecting cases and holding that the permissible time

charged in social security cases ranges typically between 40 to

60 hours); accord Taloff v. Colvin, No. 12 C 1696, 2014 WL

868040, at *3 (N.D. Ill. Mar. 5, 2014). Nonetheless, the

Commissioner contends that the hours Mr. Tuzzolino logged on this

case are excessive in light of the relatively straightforward

nature of the legal issues involved and the fact that Mr.

Tuzzolino was already familiar with the matter having represented

Fricano at the administrative level. Specifically, the

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Commissioner argues that it was unreasonable for Mr. Tuzzolino to

spend 9.75 hours reviewing the administrative record and

identifying issues for appeal. The Commissioner also asserts

that Fricano should not be awarded fees for the 5.75 hours that

Mr. Tuzzolino spent preparing an allegedly “frivolous” argument

regarding an apparent inconsistency in the administrative law

judge’s residual functional capacity findings.

The Court disagrees with both of these contentions. Given

the length of the record (694 pages) and the fact that Fricano

raised multiple issues on appeal, Mr. Tuzzolino’s time charges in

connection with his review of the case hardly can be construed as

excessive. As for the time Mr. Tuzzolino devoted to briefing the

residual functional capacity issue, the Court does not share the

Commissioner’s view that the argument he advanced in that regard

was frivolous. Regardless of the merits of the argument, Mr.

Tuzzolino’s briefing on the point at the very least raised

legitimate questions concerning the administrative law judge’s

functional capacity determination, an issue that is central to

the case. For these reasons, the Court rejects the

Commissioner’s requested reductions. 

The Court will, however, deduct from Mr. Tuzzolino’s fees

2.2 hours for time spent completing tasks that could have been

assigned to a legal assistant. See, ECF No. 21-2 at 1-2 (entry

dated May 9, 2012: 1.5 hours reviewing Fricano’s in forma

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pauperis application, completing a civil complaint cover sheet,

and filling out an attorney appearance form; entry dated June 5,

2012: 0.25 hours drafting a cover letter to accompany courtesy

copies of certain filings; entry dated Oct. 9, 2012: 0.2 hours

emailing the United States Attorney’s Office regarding an

administrative matter; and entry dated Jan. 28, 2013: 0.25 hours

Shepardizing cases). The Seventh Circuit disallows recovery for

hours expended by counsel on “tasks that are easily delegable to

non-professional assistance.” Spegon v. Catholic Bishop of

Chicago, 175 F.3d 544, 553 (7th Cir. 1999). Accordingly, the

Court reduces Mr. Tuzzolino’s overall hours to 46.05.

As for the reasonable hourly rate in this case, Fricano

asserts that Mr. Tuzzolino is entitled to be compensated at a

rate of $186.43 per hour. Although that rate exceeds the

presumptive statutory rate of $125 per hour, the EAJA permits

courts to award fees at an enhanced hourly rate if “an increase

in the cost of living [since the 1996 amendments to the Act] or

a special factor, such as the limited availability of qualified

attorneys for proceedings involved, justifies a higher fee.” 28

U.S.C. § 2412(d)(2)(A)(ii).

Mr. Tuzzolino contends that various inflationary factors

have led to an increase in the cost of living since 1996, thus

warranting approval of his proposed hourly rate. As support, Mr.

Tuzzolino offers data from the Consumer Price Index (a

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compilation of month-to-month changes in the prices of goods and

services), as well as his affirmation that his hourly rate for

non-contingency work has increased 71 percent since 1996 (from

$175 to $300 per hour), his office rent has increased 3 percent

per year, and he has paid 5 percent annual salary increases to

administrative staff so as to remain competitive with rates paid

by other law firms. As further evidence of the overall increase

in the cost of legal services, Mr. Tuzzolino asserts that the

Social Security Administration has increased its own ceiling on

administrative fee agreements by 50 percent since 1996. Finally,

Mr. Tuzzolino points to the affidavit of a fellow disability

attorney who confirms that hourly rates for disability attorneys

in the Chicago area have increased significantly since 1996 and

that attorneys in this region “are generally not willing to

accept representation of clients” at a rate of less than $185 per

hour, let alone the statutory rate of $125. (Aff. of Barry A.

Schultz, Esq., dated July 16, 2013 (“Schultz Aff.”) ¶ 6, ECF

No. 21-6). 

The Commissioner argues that this showing is insufficient to

establish an entitlement to a cost of living increase. But it is

unclear what additional proof the Commissioner would have Fricano

adduce. Indeed, “[b]y demonstrating both the general level of

inflation in the region and his attorney’s own cost increases

over the relevant period, [Fricano] has shown both that inflation

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has increased the cost of providing adequate legal service to a

person seeking relief against the government and that an

increased rate is justified by reference to [Mr. Tuzzolino’s] .

. . particular circumstances.” Mireles v. Astrue, No. 10 C 6947,

2012 WL 4853065, at *4 (N.D. Ill. Oct. 11, 2012) (quotation marks

omitted). Courts in this District have held routinely that

evidence of this type is sufficient to justify a rate enhancement

based upon increases in the cost of living. See, e.g., Cobb v.

Colvin, No. 11 C 8847, 2013 WL 1787494, (N.D. Ill. Apr. 25,

2013); Brent v. Astrue, No. 11 C 964, 2012 WL 6685688 (N.D. Ill.

Dec. 19, 2012); Mireles, 2012 WL 4853065; Dewolf v. Astrue,

No. 11 C 2043, 2012 WL 3260420 (N.D. Ill. Aug. 8, 2012); Just v.

Astrue, No. 11 C 1856, 2012 WL 2780142 (N.D. Ill. July 9, 2012);

Seabron v. Astrue, No. 11 C 1078, 2012 WL 1985681 (N.D. Ill.

June 4, 2012). The Court rejects the Commissioner’s suggestion

that any more exacting form of proof is necessary, for such a

requirement plainly would run contrary to the Seventh Circuit’s

instruction that the “proceeding to recover fees under the [EAJA]

is intended to be summary; it is not intended to duplicate in

complexity a public utility commission’s rate of return

proceeding.” Sosebee v. Astrue, 494 F.3d 583, 588 (7th Cir.

2007). Accordingly, the Court approves Fricano’s requested cost

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of living adjustment and adopts his proposed hourly rate of

$186.43. 

One last issue remains: whether the fee award should be

paid to Fricano or to Mr. Tuzzolino directly. Generally, an EAJA

award is payable to the litigant, rather than his attorney, and

is therefore subject to an administrative offset to the extent

that the litigant owes a pre-existing debt to the federal

government. Astrue v. Ratliff, 560 U.S. 586, 589 (2010). The

matter is less straightforward where, as here, the litigant has

assigned his prospective fee award to his attorney. In such

circumstances, the Seventh Circuit has held that the award should

be payable to the plaintiff’s attorney unless it is shown “that

the plaintiff has debts that may be prior to what she owes her

lawyer.” Matthews-Sheets v. Astrue, 653 F.3d 560, 565 (7th Cir.

2011). 

The Commissioner indicates that she is willing to honor

Fricano’s assignment to Mr. Tuzzolino, assuming that Fricano owes

no pre-existing debt to the government. However, she requests

that she be given a “reasonable amount of time” to determine

whether the fee award should be offset by any outstanding debt. 

The Commissioner has been chastised with some frequency for

failing to conduct this inquiry earlier. See, e.g., Todd v.

Colvin, No. 10 C 4673, 2013 WL 6065316, at *3 (N.D. Ill. Nov. 14,

2013) (“If the plaintiff owes a debt, the time to demonstrate as

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much is during the EAJA briefing, not well after.”); Booker v.

Colvin, No. 09 C 1996, 2013 WL 3013648, at *2 (N.D. Ill. June 17,

2013) (“Petitions for EAJA fees follow remand orders as

invariably as the sound of thunder follows the flash of lighting. 

By the time the petition is filed and briefed – in this case that

took the parties nearly four months – the Commissioner and the

Treasury Department should be able to come up with some

definitive answer to the debt question.”). Indeed, many courts

have denied similar requests on grounds that the Commissioner’s

mere speculation as to the existence of a debt is insufficient to

justify postponement in the payment of a fee award. See, e.g.,

Kazmi v. Colvin, No. 11 C 6123, 2013 WL 1628192, at *4 (N.D. Ill.

Apr. 15, 2013).

Although the Court is reluctant to prolong proceedings in a

case where there is no more than the hypothetical possibility

that a debt may exist, the Court does recognize the importance of

the government’s interest in obtaining repayment of federal

debts. As social security cases go, this is one of a relatively

recent vintage and it is unlikely that a brief delay in payment

of the award would result in any substantial prejudice. 

Undoubtedly, the debt inquiry should have been made sooner in

this case; nonetheless, the Court will afford the Commissioner an

additional twenty-eight (28) days to make her determination. 

See, Earls v. Colvin, No. 1:11-cv-00435-TWP-TAB, 2013 WL 1869025,

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at *2 (S.D. Ind. May 3, 2013) (granting Commissioner thirty days

to investigate whether plaintiff owed a pre-existing debt).

For the reasons stated, Fricano’s fee application is granted

in part. Fricano is awarded fees and costs in the amount of

$8,952.95. The Commissioner shall have twenty-eight (28) days

from the date of this order within which to complete her debt

inquiry. If it is determined that Fricano has unpaid federal

debts, the Commissioner may offset the fee award by any

outstanding amounts. Otherwise, the Commissioner shall make full

payment of the fee award to Mr. Tuzzolino directly.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge

United States District Court

Date:5/19/2014

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