Miller v. Commissioner of Social Security

Filing 26

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
SOUTHERN DIVISION
HILARY MARIE MILLER,

)
)
Plaintiff,
)
)
v.
)
)
COMMISSIONER OF
)
SOCIAL SECURITY,
)
)
Defendant.
)
____________________________________)

Case No. 1:16-cv-00120-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 claims for Disability Insurance Benefits (DIB). On
December

20,

2016,

this

Court

entered

a

judgment

vacating

the

Commissioner=s decision and remanding this matter back to the Commissioner
under sentence four of 42 U.S.C. ' 405(g) for further administrative
proceedings. (ECF No. 20). On March 28, 2017, this Court dismissed the
parties’ joint stipulated motion (ECF No. 21) for an award of attorney’s fees
under the Equal Access to Justice Act (EAJA) because the motion was
unsupported by evidence and did not address whether the government’s
position was substantially justified. (ECF No. 22). Plaintiff subsequently filed
an unopposed motion for attorney=s fees under the EAJA. (ECF No. 23). For

the reasons set forth herein, the Court will grant in part and deny in part
plaintiff=s motion for attorney’s fees, and a judgment will be entered in
plaintiff’s favor in the amount of $4,575.00.
Discussion
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). A
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 that would warrant a denial of fees.
See DeLong v. Commissioner, 748 F.3d at 725. 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).
Plaintiff

is

a

financially

eligible

person
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under

the

EAJA.

See

28 U.S.C. § 2412(d)(2)(B).

Plaintiff has not submitted a certificate of

compliance pursuant to W.D. MICH LCIVR 7.1(d). However, while plaintiff
should take notice to follow Rule 7.1(d), Plaintiff represents that the motion for
attorney’s fees is unopposed and that defendant offers no special circumstances
that might warrant denial of fees and has made no attempt to satisfy the
burden of demonstrating that the government’s position was substantially
justified. (ECF No. 23, 24); See Scarborough v. Principi, 541 U.S. 401, 414
(2004); Peck v. Commissioner, 165 F. App’x 443, 446 (6th Cir. 2006).
Accordingly, plaintiff is entitled to an award of attorney=s fees under the EAJA.
1.

Hours Claimed

The United States Court of Appeals for the Sixth Circuit has cautioned
lower courts against Arubber stamping@ EAJA fee applications. See Begley v.
Secretary of Health & Human Servs., 966 F.2d 196, 200 (6th Cir. 1992). 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).
Plaintiff seeks compensation for 34.25 hours in attorney time and 14.75 hours
in paralegal time for a total of 49 hours. (ECF No. 24, PageID.1116); see also
(ECF No. 24-3).

Plaintiff also seeks compensation for $224.85 in travel

expenses. (ECF No. 24, PageID.1116-17); see also (ECF No. 24-3).

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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)). “Although exceptions exist and
each case is examined on its own merits, 40 hours generally marks the ‘outer
limits’ of a reasonable expenditure of time on this type of case.” Id.
The evidence provided by plaintiff cannot support the extraordinary 49
hours requested.
questions.

This case did not involve any novel or complex legal

Arguments related to assessment of opinion evidence and

credibility are routine. See Flamboe v. Commissioner, No. 1:14-cv-1235, 2016
WL 393567, at * 2 (W.D. Mich. Jan. 11, 2016). The length of the administrative
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record was unexceptional. See (ECF No. 9-1). Further, secretarial, clerical,
and other office overhead costs are not recoverable.

See Flamboe v.

Commissioner, 2016 WL 393567, at * 2 (citing Flamboe v. Commissioner, 2013
WL 1914546, at * 2; see also Neil v. Commissioner, 495 F. App’x 845, 84[7] (9th
Cir. 2012); Spiller v. Commissioner, 940 F. Supp. 2d 647, 651 (S.D. Ohio 2013)).
The upper limit of a reasonable time to review this administrative record,
conduct whatever legal research was necessary, prepare and file plaintiff’s
brief and reply, and prepare for and attend oral argument was 30 hours.1
Additionally, this Court does not routinely award travel expenses or
travel time, but plaintiff’s attorney will receive credit for 2 hours reasonably
expended for preparing for and attending oral argument.2
The Court finds that 23.25 hours in attorney time and 6.75 hours in
paralegal time is reasonable for the work performed in this case.
2.

Hourly Rate

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

This Court reduced the time spent reviewing and drafting the abstract of
the administrative transcript by 50 percent, from 11 hours to 5.5 hours.
2 This Court routinely grants motions to appear by telephone, as the Court
did here by granting defendant’s motion for leave of court to attend the oral
argument hearing by telephone (Def. Motion, ECF No. 16); (Order, ECF No.
18). Plaintiff’s attorney chose to appear for oral argument in person and will
not be compensated for this travel time and expense.
1

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Cir. 1986). Plaintiff seeks to recover attorney=s fees at a rate of $175 and
paralegal’s fees at a rate of $100 for work performed in this Court. (ECF No.
24, Page ID.1114, 1116). 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. ' 2412(d)(2)(A). 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, 796 (2002).
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, Chief 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
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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 own merit. 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. 1:14-cv-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 23.25 hours reasonably expended by counsel by the $175 per
hour rate results in a $4,068.75 total.
This Court has found that “a reasonable rate for the paralegal services
performed [] is $75 per hour.” See Durtche v. Commissioner, No. 1:12-cv-1181,
2015 WL 1211183, at * 2 (W.D. Mich. Mar. 17, 2015); Mathis v. Commissioner,
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No. 1:13-cv-2556, 2014 WL 4187368, at * 3 (W.D. Mich. Aug. 21, 2014). See
also Capozio v. Commissioner of Social Security, No. 1:14-cv-133, 2017 WL
1017816 at * 2 (W.D. Mich. Mar. 16, 2017); Finney v. Commissioner of Social
Security, No. 1:15-cv-460, 2017 WL 946309 at * 1 (W.D. Mich. Mar. 9, 2017).
Multiplying the 6.75 hours reasonably expended by paralegals by the $75 per
hour rate results in a $506.25 total. The lodestar grand total is $4,575.00. I
find that plaintiff is entitled to recover this amount in fees under the EAJA.
3.

Judgment

Plaintiff asks that the EAJA award be made payable to plaintiff=s
attorney. (ECF No. 23). See also (ECF No. 24-8). 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 591-93.
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).
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“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).
Conclusion
For the reasons set forth herein, plaintiff’s motion for attorney’s fees
under the EAJA (ECF No. 23) is GRANTED in part and DENIED in part.
A judgment will enter in the plaintiff’s favor in the amount of $4,575.00.
SO ORDERED.

Dated: July 7, 2017

/s/ Phillip J. Green
PHILLIP J. GREEN
United States Magistrate Judge

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