Odonnell v. Commissioner of Social Security
MEMORANDUM OPINION and ORDER re 20 ; 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
BRIDGET MARY ODONNELL,
Case No. 1:16-cv-963
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
April 18, 2017, this Court entered a judgment reversing the Commissioner=s
decision and remanding this matter to the Commissioner under sentence four
of 42 U.S.C. ' 405(g) for further administrative proceedings. (ECF No. 18). On
June 7, 2017, plaintiff filed a notice of application for attorney=s fees under the
Equal Access to Justice Act (EAJA), 28 U.S.C. ' 2412. (ECF No. 20). For the
reasons set forth herein, plaintiff=s application will be granted.
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).
28 U.S.C. §2412(d)(2)(B). Defense counsel has assented to this application.
Plaintiff is entitled to an award of attorney=s fees under the EAJA.
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 27.5 hours in attorney time. (ECF No. 20,
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)).
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 Court. (ECF No. 20, Page ID.754, 759). 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, 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 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 27.5 hours reasonably expended by counsel by the $175 per
hour rate results in a $4,812.50 total.
Plaintiff asks that the EAJA award be made payable to plaintiff=s
attorney. (ECF No. 20, PageID.749). The EAJA provides in pertinent part
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
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).
For the reasons set forth herein, plaintiff’s application for EAJA fees
(ECF No. 20) is GRANTED.
Dated: June 20, 2017
/s/ Phillip J. Green
PHILLIP J. GREEN
United States Magistrate Judge
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