Edkins v. Commissioner of Social Security
MEMORANDUM OPINION; signed by Magistrate Judge Phillip J. Green (Magistrate Judge Phillip J. Green, jkw)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 1:15-cv-01322-PJG
Honorable Phillip J. Green
MEMORANDUM OPINION AND ORDER
This was a social security action brought under 42 U.S.C. ' 405(g) seeking
judicial review of a final decision of the Commissioner of Social Security denying
plaintiff=s claim for Disability Insurance Benefits (DIB).
On November 8, 2016, this
Court entered a judgment vacating the Commissioner=s decision and remanding this
matter to the Commissioner under sentence four of 42 U.S.C. ' 405(g) for further
(ECF No. 19).
On January 6, 2017, plaintiff filed a
stipulation for attorney=s fees under the Equal Access to Justice Act (EAJA), 28 U.S.C.
(ECF No. 21).
For the reasons set forth herein, the Court will grant
plaintiff=s stipulation for attorney’s fees, and a judgment will be entered in plaintiff’s
favor in the amount of $3,640.00.
The EAJA provides in relevant part:
Except as otherwise specifically provided by statute, a court shall award
to a prevailing party other than the United States fees and other
expenses . . . incurred by that party in any civil action . . ., including
proceedings for judicial review of agency action, brought by or against
the United States . . ., unless the court finds that the position of the
United States was substantially justified or that special circumstances
make an award unjust.
28 U.S.C. ' 2412(d)(1)(A); see Astrue v. Ratliff, 560 U.S. 586, 591-93 (2010).
district court=s decision granting or denying a motion for attorney=s fees under the
EAJA is reviewed on appeal under a deferential Aabuse of discretion@ standard.
DeLong v. Commissioner, 748 F.3d 723, 725 (6th Cir. 2014).
The Sixth Circuit has identified three conditions that must be met to recover
attorney=s fees under the EAJA: (1) the claimant must be a prevailing party; (2) the
government=s position must be without substantial justification; and (3) there are no
special circumstances which would warrant a denial of fees.
Commissioner, 748 F.3d at 725.
See DeLong v.
Plaintiff is a prevailing party under this Court=s
judgment remanding this matter to the Commissioner. See Shalala v. Schaefer, 509
U.S. 292, 298 (1993); 28 U.S.C. § 2412(d)(2)(H).
person under the EAJA.
Plaintiff is a financially eligible
See 28 U.S.C. § 2412(d)(2)(B).
entitled to an award of attorney=s fees under the EAJA.
Accordingly, plaintiff is
The United States Court of Appeals for the Sixth Circuit has cautioned lower
courts against Arubber stamping@ EAJA fee applications.
Health & Human Servs., 966 F.2d 196, 200 (6th Cir. 1992).
See Begley v. Secretary of
The EAJA requires Aan
itemized statement from [the] attorney . . . representing or appearing in behalf of the
party stating the actual time expended and the rate at which fees and other expenses
were computed.@ 28 U.S.C. ' 2412(d)(1)(B).
hours in attorney time.
Plaintiff seeks compensation for 20.8
(ECF No. 21, PageID.618; ECF No. 21-1, PageID.622).
Generally, a reasonable expenditure of time for representation of a party
seeking judicial review of the Commissioner=s final administrative decision denying
claims for DIB and SSI benefits is in the range of 15 to 30 hours. See Flamboe v.
Commissioner, No. 1:12-cv-606, 2013 WL 1914546, at * 2 (W.D. Mich. May 8, 2013);
see also Fredericks v. Commissioner, No. 1:12-cv-1234, 2014 WL 4057794, at * 2 (W.D.
Mich. Aug. 14, 2014); Nichols v. Commissioner, No. 1:09-cv-1091, 2012 WL 1189764,
at * 2 (W.D. Mich. Mar. 19, 2012) (collecting cases). AUnlike other types of civil cases
in which the amount of discovery alone often creates wide variability in litigation
hours, the vast majority of social security appeals conform to a relatively narrow
range of hours because they involve a largely settled area of law, require no discovery,
and follow a precise briefing schedule[.]@
Flamboe v. Commissioner, 2013 WL
1914546, at * 2 (quoting Crim v. Commissioner, No. 1:11-cv-137, 2013 WL1063476,
at *4 (S.D. Ohio Mar. 14, 2013)).
Having reviewed the record, the Court finds that 20.8 hours is reasonable for
the work performed in this case.
The EAJA generally caps the hourly rate for attorney=s fees at $125 per hour.
28 U.S.C. ' 2412(d)(2)(A).
A[T]he statutory rate is a ceiling and not a floor.@
Chipman v. Secretary of Health & Human Servs., 781 F.2d 545, 547 (6th Cir. 1986).
Plaintiff seeks to recover attorney=s fees at a rate of $175 for work performed in this
(ECF No. 21, Page ID.618).
The EAJA specifies that Aattorney=s 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.
The Supreme Court has determined that the statutory $125-per-
hour cap applies Ain the mine run of cases.@ Gisbrecht v. Barnhart, 535 U.S. 789,
No consensus has emerged in this Court regarding whether the State Bar of
Michigan=s Economics of Law Practice Survey is sufficient evidence to justify a
departure above the statutory $125 per hour cap to an hourly rate of up to $175 per
hour. Compare Sorensen v. Commissioner, No. 1:14-cv-719, 2015 WL 1003098, at
*2-4 (W.D. Mich. Mar. 5, 2015) ($125 per hour) with Shellman v. Commissioner, No.
1:13-cv-959, 2014 WL 1875107, at * 2 (W.D. Mich. May 8, 2014) ($175 per hour).
In Thompson v. Commissioner, Judge Jonker found that the State Bar survey
did not warrant a rate above the statutory cap:
The Michigan Bar survey of attorney rates is  insufficient. In the first
place, the survey is fairly generic and does not in any way drill down to
social security practitioners specifically. Moreover, a market rate
survey is not necessarily probative of a fair rate of compensation under
the EAJA. There certainly does not appear to be a shortage of
practitioners ready to take on the Commission for a chance at the EAJA
rate. Finally, the Commissioner=s acquiesce is not decisive. The
Court has an independent obligation to evaluate the rates.
No. 1:13-cv-1027, 2014 WL 4080417, at * 1 (W.D. Mich. Aug. 14, 2014).
In Harrington v. Commissioner, No. 1:13-cv-1373, 2015 WL 1781480, at * 2
(W.D. Mich. Apr. 20, 2015), Judge Neff noted that it is not sufficient to simply point
to other cases where rates higher than the statutory cap were approved. Judge Neff
and other judges of this Court have recently approved an hourly rate as high as $175
per hour, but it is not a default rate, and each application must be evaluated on its
See Havens v. Commissioner, No. 1:13-cv-938, 2015 WL 5918736, at * 2-
3 (W.D. Mich. Oct. 9, 2015); accord Malone v. Commissioner, No. 1:13-cv-821, 2015
WL 6159404, at * 2 (W.D. Mich. Oct. 20, 2015); Bradford v. Commissioner, No. 1:14cv-1061, 2015 WL 5793302, at * 2-3 (W.D. Mich. Oct. 1, 2015); Martin v.
Commissioner, 1:12-cv-1030, 2015 WL 3513770, at * 2-3 (W.D. Mich. June 4, 2015).
The combination of the evidence plaintiff presented and the recent decisions of
this Court cited above support a $175 rate under the EAJA.
Multiplying the 20.8
hours reasonably expended by counsel by the $175 per hour rate results in a $3,640.00
The EAJA provides in pertinent part that the Court shall award fees Ato a
prevailing party.@ 28 U.S.C. ' 2412(d)(1)(A).
Thus, any judgment entered for EAJA
attorney=s fees must be entered in plaintiff=s favor. See Astrue v. Ratliff, 560 U.S. at
AAny agreements entered into between plaintiff and counsel are not part of
this closed case and cannot be injected into it at this juncture.
There is a significant
potential for conflict among plaintiff, his creditors, and his attorney with regard to
the EAJA fees.@ Flamboe v. Commissioner, 2013 WL 1914546. at * 3. AThe EAJA
does not legally obligate the Government to pay a prevailing litigant=s attorney, and
the litigant=s obligation to pay [his] attorney is controlled not by the EAJA but by
contract and the law governing that contract.@ Astrue v. Ratliff, 560 U.S. at 599
(Sotomayor, J. concurring).
“Plaintiff=s contractual obligations to his attorney are
not part of this case.” Flamboe v. Commissioner, 2013 WL 1914546, at * 3; see Drew
v. Commissioner, No. 1:13-cv-1135, 2014 WL 6680243, at * 2 (W.D. Mich. Nov. 25,
2014). The parties here stipulate that any judgment entered for EAJA attorney’s
fees be entered in plaintiff’s favor.
(ECF No. 21, PageID.620).
For the reasons set forth herein, plaintiff’s stipulation (ECF No. 21) will be
A judgment will enter in the plaintiff’s favor in the amount of
Dated: July 21, 2017
/s/ Phillip J. Green
PHILLIP J. GREEN
United States Magistrate Judge
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