Daniels v. Commissioner of Social Security

Filing 32

Opinion and Order signed by Judge James S. Gwin on 1/4/13 granting plaintiff's motion for attorney fees. The Court awards attorney fees of $3,359.42 to the plaintiff and orders payment consistent with this order. (Related Doc. 27 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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COURTNEY M. DANIELS,
:
:
Plaintiff,
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vs.
:
:
MICHAEL J. ASTRUE,
:
Commissioner of Social Security,
:
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Defendant.
:
:
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CASE NO. 1:11-CV-806

OPINION & ORDER
[Resolving Doc. No. 27]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiff Courtney M. Daniels seeks an award of attorney fees under the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412. Though the Commissioner does not dispute her
entitlement to fees, or the reasonableness of the hours billed on her case, he challenges the hourly
billing rates used in calculating in her fee application. Because Plaintiff’s experience in this field
warrants a fee increase beyond the presumptive statutory maximum, the Court GRANTS the
Plaintiff’s application, AWARDS attorney fees to the Plaintiff at the rate of $175 per hour for 2011
compensable hours, and $179.59 per hour for 2012 compensable hours, and ORDERS payment
consistent with this opinion.
I. Background
On April 25, 2011, Plaintiff Courtney Daniels filed a complaint seeking review of the
Defendant Commissioner of Social Security’s decision to deny her application for disability benefits
under the Social Security Act, 42 U.S.C. § 405(g). [Doc. 1.] The matter was referred to Magistrate
Judge Kathleen B. Burke under Local Rule 72.2. On May 7, 2012, Magistrate Judge Burke issued

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a Report and Recommendation recommending that this Court reverse the Commissioner’s decision.
[Doc. 23.] The Commissioner filed a response on May 21, 2012 stating that he would not file an
objection to the Report and Recommendation. [Doc. 24.] On August, 13, 2012, the Court adopted
Magistrate Judge Burke’s Report and Recommendation, reversed the Commissioner’s decision, and
remanded this case for further proceedings. [Doc. 25.]
On November 8, 2012, the Plaintiff filed this application for attorney fees under the Equal
Access to Justice Act, (“EAJA”), which provides that:
a court shall award to a prevailing party . . . fees and other expenses . . . incurred by
that party in any civil 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). She seeks an award of attorney fees at the rate of $175.00 per hour for
compensable hours billed in 2011, and $179.59 per hour in 2012. [Doc. 27 at 4-5.]
II. Legal Standard
Under the EAJA, a prevailing party in litigation with the United States is presumptively
entitled to reasonable attorney fees unless the government shows 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). A Social Security claimant who obtains a remand order from a federal district court
pursuant to sentence four of 42 U.S.C. § 405(g) is a prevailing party for purposes of the EAJA.
Shalala v. Schaefer, 509 U.S. 292 (1993).
The EAJA does, however, provide a presumptive $125.00 statutory cap on the hourly billing
rates that a prevailing party may be reimbursed.
The amount of fees awarded under this subsection shall be based upon prevailing
market rates for the kind and quality of the services furnished, except that (i) no
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expert witness shall be compensated at a rate in excess of the highest rate of
compensation for expert witnesses paid by the United States; and (ii) 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). A prevailing party may seek fees in excess of the presumptive statutory
cap, but “bears the burden of producing appropriate evidence to support the requested increase.”
Bryant v. Commissioner of Soc. Sec., 578 F.3d 443, 450 (6th Cir. 2009).
III. Discussion
The parties do not dispute the Plaintiff’s entitlement to attorney fees. Nor do the parties
dispute the number of hours billed by the Plaintiff’s attorney in this case. The only issue for the
Court’s consideration is the appropriate hourly rate upon which her fee award should be based.
The Plaintiff says that the Court should award fees in excess of the usual $125.00 hourly
limit. First, she says that the cost of living has increased since 1996, when the EAJA cap was
increased from $75.00 to its current presumptive limit of $125.00. [Doc. 27 at 4.] Second, she says
that she is entitled to increased fees because the prevailing hourly rate customarily charged by her
attorney, and by similar practitioners in this District, is higher than the statutory cap. [Doc. 27 at 4.]
She notes her attorneys’ over-thirty years of experience in Social Security cases. [Doc. 27 at 5.]
I. Cost-of-Living Increases
The Plaintiff is correct that cost-of-living expenses, if adequately shown to impact the
availability and cost of providing adequate legal services, may justify a fee award beyond the
presumptive statutory cap. 28 U.S.C. § 2412(d)(2)(A). But unlike the jurisdictions to which the
Plaintiff misdirects the Court’s attention, [Doc. 27 at 4], the Sixth Circuit does not treat Consumer
Price Index-based fee increases “as perfunctory or . . . mandatory” but “leaves the matter to the
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sound discretion of the district court.” Begley v. Sec’y of Soc. Sec., 966 F.2d 196, 200 (6th Cir.
1992). In the Sixth Circuit, evidence from the Consumer Price Index is “not enough” to justify an
increase in fees. Bryant, 578 F.3d at 450; see also Darabed v. Astrue, No. 1:10-cv-2626, ECF Doc.
No. 26 (N.D. Ohio May 30, 2012) (denying increased-rate fee award); Williams v. Astrue, No. 3:10cv-02354, ECF Doc. No. 25, at 5 (N.D. Ohio May 23, 2012) (same).
Here, apart from her insufficient reference to the Consumer Price Index, the Plaintiff makes
no showing that the practice at the $125 rate is commercially impracticable. She therefore fails to
bear her burden of proof to show that inflation justifies a cost-of-living increase. Begley, 966 F.2d
196 (“The issue is, and must remain, whether these increases in the cost of living ‘justif[y] a higher
fee.’”); see also Matthews-Sheets v. Astrue, 653 F.3d 560, 563 (7th Cir. 2011) (Posner, J.) (“The
framers of the Equal Access to Justice Act were right therefore not to create an entitlement to an
inflation adjustment; the lawyer seeking such an adjustment must show that inflation has increased
the cost of providing adequate legal service to a person seeking relief against the government.”)
(emphasis in original) (citing Bryant, 578 F.3d at 450.)
II. Prevailing Rates and Special Factors
The Plaintiff says that she is entitled to a fee increase because the prevailing market rates for
Social Security litigation are substantially higher than the statutory cap. But a higher prevailing rate,
if established, simply triggers the statutory cap. It does not ipso facto satisfy the plaintiff’s burden
to demonstrate special factors to justify increased fees. See Matthews-Sheets, 653 F.3d at 562 (“The
Equal Access to Justice Act does not authorize an award of the prevailing hourly rate, as such, unless
it is less that $125 an hour.”). Even if the prevailing local rate for identical services exceeds the
statutory cap, the Plaintiff must still demonstrate special factors that warrant an increased award
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before she may receive enhanced fees.
In this case, Plaintiff submits evidence of median attorney billing rates–organized only by
firm size and metropolitan region–from the Ohio State Bar Association in support of her requested
fee increase. [Doc. 27-1.] But the Court must consider “the prevailing market rate for attorneys’
services of the kind and quality rendered in this case.” Begley, 966 F.2d at 200 (emphasis added).
Without any indices as to kind or quality of services rendered, the Ohio State Bar Association survey
data is insufficient. The billing data from the Plaintiff’s Consumer Law survey is equally unhelpful,
for there is no indication that any Social Security-specific practices comprise any statistically
significant position–or any position at all–among the survey respondents.1/

Neither survey

establishes any meaningful prevailing rate for the legal services “of the kind and quality” provided
here, much less any specific facts that might warrant a fee increase were the prevailing rate higher
than the presumptive fee cap.
The Plaintiff also says that she is entitled to increased fees because her attorney customarily
charges clients significantly more than $125.00 per hour. This may be true, but her individuated
billing rates are not themselves a “special factor” for the purposes of the EAJA. They do not
demonstrate that “a lawyer capable of competently handling the challenge that [her] client mounted
to the denial of Social Security disability benefits could not be found in the relevant geographical
area to handle such a case.” Matthews-Sheets, 653 F.3d at 563. And the public record shows
otherwise. Bouter v. Comm’r of Soc. Sec., No. 1:09-cv-2682, ECF Doc. No. 21 at 1 (N.D. Ohio Dec.

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The survey describes its heartland respondents as practicing in the fields of fair credit, consumer banking, and
credit discrimination lawsuits. See Ronald L. Burdge, United States Consumer Law Attorney Fee Survey Report, 201011, at 1 (available at www.lb7.uscourts.gov/documents/ILSD/11-53.pdf) (last accessed December 17, 2012). It was
circulated among members of the National Association of Consumer Advocates, an advocacy group that does not include
Social Security benefits among its “Key Issues.”

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1, 2011) (motion for attorney fees) (requesting fee award for Social Security advocacy at rate of
$125.00 per hour.)
Similarly, though the Plaintiff avers that her attorney’s practice is both specialized and
experienced, niche expertise “does not in itself warrant a fee in excess of the statutory rate.”
Stockton v. Shalala, 36 F.3d 49, 50 (8th Cir. 1994). The EAJA permits plaintiffs to seek enhanced
fees where specific skills and knowledge necessary to litigate of a particular case are not held among
more general practitioners. Pierce v. Underwood, 487 U.S. 552, 572 (1988) (“limited availability”
exception “refers to attorneys having some distinctive knowledge or specialized skill needful for the
litigation in question,” but only permits above-cap reimbursement where counsel with requisite
speciality cannot be procured at the statutory cap). General evidence that her attorney specializes in
Social Security advocacy does not justify enhanced fees. See Fawcett v. Barnhart, No. 4:04-cv2448, 2008 WL 2783494, at *5 (N.D. Ohio July 15, 2008) (O’Malley, J.) (“Plaintiff’s counsel’s
expertise in Social Security cases [including specialized subject-matter knowledge and practicebased accreditation] does not justify the enhanced hourly rate.”).
Nonetheless, the Plaintiff insists that her requested (enhanced) fee “has been recognized as
the customary hourly rate in this Court.” [Doc. 27 at 6.] The court acknowledges that Judges in this
district have on occasion granted fees at rates above the presumptive cap. See, e.g. Tantari v. Astrue,
No. 1:11-cv-901, ECF Doc. No. 28, at 4 (N.D. Ohio August 16, 2012) (collecting cases granting
higher awards); . Nonetheless, no authority excuses the Court from its duty to exercise its discretion
consistent with the evidence in this application. To the contrary, in the Plaintiff’s first case,
Magistrate Judge Limbert correctly noted that fee applications must be reviewed independently in
each case for reasonableness. Griffiths v. Comm’r of Soc. Sec., No. 1:09-cv-2453, ECF Doc. No. 33,
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at 5 (N.D. Ohio June 2, 2011) (order granting fee award). And though what appears to be an
identical CPI-schedule-based fee award increase was recently awarded to another of the Plaintiff’s
attorney’s clients, that Order does not support the notion that those fees should be treated as
presumptively reasonable for every future fee application filed in this District. Lightfoot v. Astrue,
No. 1:10-cv-01273, 2012 WL 1109990, at *4 (N.D. Ohio Mar. 31, 2012) (Lioi, J.).
Yet in context of this discretion, the Court recognizes that Plaintiff’s attorneys have overthirty years of experience, each, in Social Security law. [Doc. 27 at 5.] Ms. Balin says that she has
spent more than eighteen of those years practicing solely Social Security disability law and Ms. Pettit
the entirety of her career. [Doc. 27 at 5.] With experience comes greater familiarity, facility, and,
therefore, speed. This Court has recognized that Social Security cases often involve thirty to forty
hours of work. See Kane v. Astrue, 1:10CV1874, 2012 WL 5357781 at *4 (N.D. Ohio Oct. 31,
2012); see also Grooms v. Comm'r of Soc. Sec., 2:08-14189, 2011 WL 4536886 (E.D. Mich. Sept.
30, 2011); cf. Hayes v. Sec'y of Health & Human Services, 923 F.2d 418, 420 (6th Cir. 1990).
Plaintiff requests fees for just nineteen hours of work. [Docs. 27-5, 27-6.] While no two cases are
identical, economies based on Plaintiff’s attorneys’ experience in this area at least warrant that the
time spent on this matter be compensated at a higher rate. See, e.g., Willis v. Comm'r of Soc. Sec.,
10-CV-594, 2012 WL 4322604 (S.D. Ohio Sept. 20, 2012) (citing attorney’s thirty-five years of
experience).
IV. Conclusion
For the foregoing reasons, the Court GRANTS the Plaintiff’s motion for attorney fees,

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AWARDS attorney fees of $3,359.42 to the Plaintiff, and ORDERS payment consistent with this
order.
IT IS SO ORDERED.

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Dated: January 4, 2013

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