Clark v. Commissioner of Social Security

Filing 26

MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl granting in part and denying in part 23 Motion for Attorney Fees. Clark's request for an award of attorney fees at the rate of $176.13 per hour is DENIED. Clar k is awarded attorney fees at the rate of $140.00 per hour and paralegal fees at the rate of $100.00 per hour. Clark is awarded attorney fees in the amount of $5,535.00 (34.75 hours multiplied by $140.00 plus 6.7 hours multiplied by $100.00). Clerk of the Court shall enter separate judgment in favor of Clark and against the Commissioner in the amount of $5,535.00 in attorney fees. cc: Counsel (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:15-CV-00015-HBB

DARLA CLARK

PLAINTIFF

VS.

CAROLYN W. COLVIN, Acting
Commissioner of Social Security

DEFENDANT

MEMORANDUM OPINION
AND ORDER
This matter is before the court on Darla Clark’s motion for an award of attorney fees under
the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2414(d) (DN 23). Pursuant to 28 U.S.C. '
636(c) and Fed.R.Civ.P. 73, the parties have consented to the undersigned United States
Magistrate Judge conducting all further proceedings in this case, including issuance of a
memorandum opinion and entry of judgment, with direct review by the Sixth Circuit Court of
Appeals in the event an appeal is filed (DN 16). The Court, having reviewed the record, will grant
the motion in part and deny the motion in part.

Background
In February of 2015, Darla Clark (“Clark”) filed a complaint pursuant to 42 U.S.C. §
405(g) seeking judicial review of the Administrative Law Judge’s denial of benefits (DN 1). The
1

Commissioner filed a joint motion to remand the case for further proceedings under “sentence
four” of 42 U.S.C. 405(g) (DN 20).

The Court granted the joint motion, directing the

Administrative Law Judge to further evaluate the treating source opinion of Michael Cummings,
M.D., and reversing the final decision of the Commissioner (DN 21). Now, Clark has filed a
motion for an award of attorney fees (DN 23). In support, Clark submits a memorandum, an
affidavit and waiver, and the declaration of Howard D. Olinsky (DN 23-1, 23-1, 25-1).

Analysis
Clark seeks attorney fees in the amount of $6,790.52 per hour (DN 23-1, at p. 2). She
believes that the Consumer Price Index for this region requires a cost of living increase, yielding
an hourly rate of $176.13 for attorneys and $100.00 for paralegals (Id.). Clark calculates that the
attorneys performed 34.75 hours of work, totaling $6,120.52, and the paralegals performed 6.7
hours of work, totaling $670.00, which added together totals the $6,790.52 (Id.).

The

Commissioner agrees that Clark is entitled to reasonable attorney fees but argues that her
requested rate of $176.13 per hour is not justified under the EAJA (DN 24, at p. 2). As such, the
Commissioner recommends the Court use the prevailing hourly rate of $140.00 (Id.). In reply,
Clark attaches a declaration of Howard J. Olinsky and argues that the Sixth Circuit approved a
similar rate in Glenn v. Commissioner of Social Security, 763 F.3d 494, 497 n. 3 (6th Cir. 2014).
To be entitled to attorney fees under the EAJA, a court must find that (1) the party seeking
fees was a prevailing party in a civil action; (2) the party timely filed an application for fees; (3) the
position of the agency was not substantially justified; and (4) the fees requested are reasonable.
28 U.S.C. §§ 2412(d)(1)(A),(B).

With respect to the hourly rate awarded to attorneys, the EAJA

states:
2

The amount of fees awarded shall be based upon the prevailing
market rates for the kind and quality of 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). When requesting an increased hourly-fee rate, the claimant bears the
burden of producing “satisfactory evidence –in addition to the attorney’s own affidavits—that the
requested rates are in line with those prevailing in the community for similar services by lawyers
of reasonably comparable skill, experience, and reputation.” Bryant v. Comm’r of Soc. Sec., 578
F.3d 443, 450 (6th Cir. 2009) (quoting Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984)). The
court has the sound discretion to rule on this issue and should not consider the $125.00 rate as a
“minimum hourly fee.” Begley v. Sec’y of Health & Human Servs., 966 F.2d 196, 199-200 (6th
Cir. 1992) (citing Chipman v. Sec’y of Health & Human Servs., 781 F.2d 545, 547 (6th Cir.
1986)).
As mentioned above, Clark relies on the Bureau of Labor Statistics’ Midwest All Urban
Consumer Price Index to argue that the hourly rate should be enhanced to $176.13 based on
cost-of-living increases (DN 23-1, at p. 2). However, the Sixth Circuit holds that the Consumer
Price Index alone is insufficient to sustain the claimant’s burden of producing appropriate
evidence to support an increased rate. Bryant, 578 F.3d at 450.
Clark also submits the declaration of attorney Howard J. Olinsky in support of the
cost-of-living enhanced rate of $176.13 per hour (DN 25-1). Yet Mr. Olinsky’s affidavit merely
indicates he is an attorney in Syracuse, New York, who has a great deal of experience practicing
Social Security law, and that his current contingent hourly rate in other matters is $450.00 per hour
(Id.). The Sixth Circuit explains that the prevailing market rate is:
3

[T]hat rate at which lawyers of comparable skill and experience can
reasonably expect to command within the venue of the court of
record, rather than foreign counsel’s typical charge for work
performed within a geographical area wherein he maintains his
office and/or normally practices, at least where the lawyer’s
reasonable ‘home’ rate exceeds the reasonable ‘local’ charge.
Adcock-Ladd v. Sec’y of the Treasury, 227 F.3d 343, 350 (6th Cir. 2000) (quoting Hudson v.
Reno, 130 F.3d 1193, 1208 (6th Cir. 1997) cert denied, 525 U.S. 822 (1998)).

Mr. Olinsky’s

affidavit focuses on his experience but fails to discuss the rate at which lawyers of comparable
experience in Bowling Green, Kentucky, reasonably expect to command.
Additionally, Clark relies on a footnote in the Glenn case that reads as follows: “[t]he fees
requested included 39.6 hours of work in 2012 at a rate of $ 171.06, 3.5 hours in 2013 at a rate of
$173.01, and 1.9 hours of administrative work at a rate of $80. Both the number of hours worked
and modest hourly rates requested appear to be reasonable.” 763 F.3d at 497 n. 3. The issue in
Glenn, however, was not whether the requested hourly rate was reasonable but, rather, whether the
Commissioner’s position on appeal was “substantially justified.” Id.

Accordingly, the footnote

is nothing more than dictum. Moreover, while the Sixth Circuit’s observation might be helpful
when assessing the prevailing market rate for attorney’s services in the Eastern District of
Michigan, it has no bearing here. Again, the issue in Clark’s case is the rate at which lawyers of
comparable skill and experience can reasonably expect to command within Bowling Green,
Kentucky.
Even when considering the Midwest All Urban Consumer Price Index, the affidavit from
Mr. Olisnky, and the footnote from Glenn together, Clark has failed to produce evidence
demonstrating the requested rate of $ 176.13 is in line with the prevailing rates in the community.
See, Bryant, 578 F.3d at 450.
4

By contrast, the Commissioner has cited recent rulings establishing that $140.00 per hour
is a reasonable and customary rate for experienced social security practitioners in the Louisville
metropolitan area, in the Western District of Kentucky. See, Report Hale v. Colvin, no. 14-142
(W.D. Ky. Sept. 28, 2015); Neff v. Colvin, No. 13-638, 2015 WL 796604, at *3 (W.D. Ky. Feb.
25, 2015); Harville v. Colvin, No. 13-4176, 2015 WL 64977, at *2 (W.D. Ky. Jan 5, 2015). The
undersigned has found additional cases reaching the same conclusion. Order Murry v. Colvin,
Case No. 3:12CV-00056-CRS (W.D. Ky. Nov. 20, 2013) (counsel had over 40 years of
experience); Order Land v. Astrue, No. 3:06CV-00227-EHJ (W.D. Ky. Aug. 30, 2007) (“The
Court concludes that for experience Louisville metropolitan area practitioners who concentrate in
social security disability work, the presumptive maximum EAJA hourly rate will be $ 140.”).
Obviously the cost of living and prevailing rates in the Louisville metropolitan area are higher,
perhaps considerably higher, than the Bowling Green area. Nevertheless, the Court recently
concluded that $140.00 per hour is the prevailing market rate within the Owensboro Division of
the Western District of Kentucky. Report Esters v. Colvin, No. 4:13CV-00055-JHM (W.D. Ky.
Feb. 4, 2015).
To that end, the undersigned finds that an award in excess of $125.00 per hour is
appropriate due to an increase in the cost of living. 28 U.S.C. § 2412(d)(2)(A). Yet Clark fails to
produce evidence that $176.13 is the prevailing rate in the Bowling Green area for similar services
by lawyers of reasonably comparable skill, experience, and reputation. Bryant, 578 F.3d at 450.
The undersigned, instead, will give Clark’s counsel the benefit of the doubt and compensate him at
the rate of $140.00 per hour because that is the prevailing market rate for social security
practitioners in the Western District of Kentucky.

5

The Commissioner does not object to Clark’s request that the paralegals be paid at the rate
of $100.00 per hour. Further, the Commissioner does not object to the calculation of 34.75 hours
of attorney work and 6.7 hours of paralegal work. The Court finds this hourly rate for the
paralegals and the total amount of time to be reasonable for this case. Multiplying the 34.75 hours
of attorney work by $140.00 per hour results in $4,865.00. Multiplying the 6.7 hours of paralegal
work by $100.00 per hour results in $670.00. Thus, the total amount of the attorney fee award is
$5,535.00.
Pursuant to Astrue v. Ratliff, an EAJA fee award “is payable to the litigant [not the
attorney] and is therefore subject to a Government offset to satisfy a pre-existing debt that the
litigant owes the United States.” 560 U.S. 586, 589, 130 S.Ct. 2521, 177 L.Ed. 2d 91 (2010).
Accordingly, after this Court enters an award for Clark, the Commissioner will determine whether
he owes a debt to the United States Government that qualifies under the Treasury Offset Program,
31 U.S.C. §§ 3711 and 3716, which allows for the collection of a federal debt from the amount
awarded to Clark. If Clark does owe a debt to the Government, her EAJA fee award will be
applied toward such a debt by the Treasury Department’s Offset Program, and the Commissioner
will notify the Treasury Department that if any funds remain after the EAJA fee award is applied to
her debt, the Treasury Department should issue a check for the remaining funds made payable to
Clark and mail that check to her counsel. If, on the other hand, the Commissioner verifies that
Clark owes no pre-existing debt subject to offset, the Commissioner will direct that the award be
made payable to Clark.

6

ORDER
For the foregoing reasons, IT IS HEREBY ORDERED that Clark=s motion for attorney
fees (DN 23) is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that Clark’s request for an award of attorney fees at the rate
of $ 176.13 per hour is DENIED.
IT IS FURTHER ORDERED that Clark is awarded attorney fees at the rate of $ 140.00
per hour and paralegal fees at the rate of $ 100.00 per hour.
IT IS FURTHER ORDERED that Clark is awarded attorney fees in the amount of
$5,535.00 (34.75 hours multiplied by $140.00 plus 6.7 hours multiplied by $100.00).
IT IS FURTHER ORDERED that the Clerk of the Court shall enter the separate
judgment in favor of Clark and against the Commissioner in the amount of $5,535.00 in attorney
fees.

March 15, 2016

Copies:

Counsel

7