Johnson v. Social Security

Filing 30

MEMORANDUM AND ORDER GRANTING PLAINTIFF'S PETITION FOR ATTORNEY FEES [DOC. 23] Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RICHARD JAMIE JOHNSON,
Plaintiff,
Case No. 17-13126
v.
HONORABLE AVERN COHN
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________/
MEMORANDUM AND ORDER
GRANTING PLAINTIFF’S PETITION FOR ATTORNEY FEES (Doc. 23)1
I.
This is a social security case. Plaintiff Richard Jamie Johnson appealed from the
final determination of the Commissioner of Social Security (Commissioner) that he is not
disabled and therefore not entitled to disability insurance benefits. The matter was
referred to a magistrate judge for all pretrial proceedings. Plaintiff and the
Commissioner filed cross motions for summary judgment. (Docs. 16, 18). Plaintiff
requested that the Commissioner’s decision either be reversed or remanded to the
Administrative Law Judge (ALJ) for further proceedings.
The magistrate judge issued a report and recommendation (MJRR),
recommending that plaintiff’s motion be granted in part, the Commissioner’s motion be
denied, and the matter remanded under sentence four2 for further administrative

1

Upon review of the parties’ papers, the Court deems this matter appropriate for
decision without oral argument. See Fed. R. Civ. P. 78(b); E.D. Mich. LR 7.1(f)(2).
2

“A district court's authority to remand a case for further administrative
proceedings is found in 42 U.S.C. § 405(g).” Hollon v. Commissioner, 447 F.3d 477,

proceedings. (Doc. 20). Neither party objected. The Court then issued an order
adopting the MJRR, granting plaintiff’s motion for summary judgment in part, denying
the Commissioner’s motion for summary judgment, and remanding the matter for further
administrative proceedings consistent with the MJRR. (Doc. 21).
Before the Court is plaintiff’s petition for attorney fees under the Equal Access to
Justice Act (EAJA). (Doc. 23). For the reasons that follow, the motion will be granted.
II.
The EAJA provides that the Court shall award attorney fees and expenses to a
prevailing party (other than the United States) in any civil action brought against the
United States, unless the position of the government was substantially justified. 28
U.S.C. § 2412(d)(1)(A). The EAJA also provides that the attorney fees awarded may
not be at a rate of more than $125 per hour, unless the Court determines that an
increase in the cost of living, or some other special factor, justifies a higher fee. Id. §
2412(1)(D)(2)(A).
Here, plaintiff’s counsel seeks attorney fees and at the rate of $175.00 per hour
for 26.33 hours, for a total fee award of $4,607.75.
In its objections, the Commissioner does not object to the hourly rate or overall
amount. However, the Commissioner says that no attorney fees or expenses should be
awarded because its position was substantially justified. This argument does not carry
the day. Most notably, the Commissioner never objected to the MJRR. Now in

482-83 (6th Cir. 2006). The statute permits only two types of remand: a sentence four
(post-judgment) remand made in connection with a judgment affirming, modifying, or
reversing the Commissioner's decision; and a sentence six (pre-judgment) remand
where the court makes no substantive ruling as to the correctness of the Commissioner's
decision. Hollon, 447 F.3d at 486 (citing Melkonyan v. Sullivan, 501 U.S. 89, 99-100,
111 S.Ct. 2157, 115 L.Ed.2d 78 (1991)).

2

responding to plaintiff’s EAJA application, the Commissioner essentially reargues the
merits of the case. Although the Commissioner is correct that plaintiff did not obtain a
remand on all of the issues requested, the fact is plaintiff did obtain a remand. Under
these circumstances, the Commissioner’s position was not substantially justified.
III.
For the reasons stated above, plaintiff’s motion is GRANTED. Plaintiff is entitled
to an award of attorney fees as the prevailing party in the amount of $4,607.75. These
fees are subject to offset through the Treasury Department’s Offset Program to satisfy
any pre-existing debt Plaintiff may owe to the government.
If the Commissioner determines that plaintiff owes no debt to the government
that would subject this award of attorney’s fees to offset, the Commissioner may honor
the plaintiff’s assignment of EAJA fees providing for payment of the subject fees to
plaintiff’s counsel, rather than to plaintiff. If, however, plaintiff is discovered to owe the
government any debt subject to offset, the Commissioner shall pay any attorney’s fees
remaining after such offset to plaintiff rather than to counsel. Should this occur, any
remaining fees made payable to plaintiff shall be sent to his counsel.
SO ORDERED.

S/Averen Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: 3/20/2019
Detroit, Michigan

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