Dabney v. Commissioner of Social Security

Filing 21

Memorandum Opinion and Order re 19 pltf's Motion for attorney fees is hereby granted. Magistrate Judge Vernelis K. Armstrong on 3/19/13. (B,CJ)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Lavell Dabney,

:
Plaintiff

Case No. 1:11-CV-2019

:

v.
Commissioner of Social Security,
Defendant

:
:
:

MEMORANDUM OPINION
AND ORDER

:

I. INTRODUCTION
On December 30, 2011, the parties consented to the jurisdiction of the undersigned
Magistrate for any and all further proceedings in this case, including trial and the entry of a final
judgment, pursuant to 28 U.S.C. § 636(c)(1) (Docket No. 14). Pending are Plaintiff Lavell
Dabney’s (“Plaintiff”) Motion for Attorney Fees under the Equal Access to Justice Act, 28
U.S.C. § 2412(a) (Docket No. 19) and Commissioner’s (“Defendant”) Response (Docket No.
20). For the reasons set forth below, Plaintiff’s Motion for Attorney Fees is granted.
II. PROCEDURAL BACKGROUND
On June 5, 2009, Plaintiff filed a timely application for Disability Insurance Benefits
(“DIB”), as well as an application for Supplemental Security Income (“SSI”), alleging a

disability beginning December 10, 2004 (Docket No. 10, pp. 184-201 of 490). Plaintiff’s
applications were denied initially and upon reconsideration on March 29, 2010 (Docket No. 10,
pp. 92-112 of 490). On April 13, 2010, Plaintiff requested a hearing before an Administrative
Law Judge (“ALJ”) (Docket No. 10, pp. 132-33 of 490). This hearing took place on December
6, 2010, before ALJ Andrew M. Emerson (“ALJ Emerson”) (Docket No. 10, pp. 32-73 of 490).
Plaintiff, represented by counsel Heather Bancheck, appeared and testified (Docket No. 10, pp.
32-63 of 490). A Vocational Expert (“VE”) also appeared and testified (Docket No. 10, pp. 6373 of 490). In a decision dated December 22, 2010, ALJ Emerson concluded Plaintiff was not
entitled to either DIB or SSI (Docket No. 10, p. 23 of 490). ALJ Emerson’s decision became the
final decision of the Defendant when the Appeals Council denied review on July 29, 2011
(Docket No. 10, pp. 6-8 of 490).
Plaintiff filed a timely Complaint seeking judicial review of the Defendant’s decision
denying benefits under 42 U.S.C. §§ 405(g) and 1383(c)(3) in this Court (Docket No. 1). On
September 12, 2012, the undersigned Magistrate issued a Memorandum Opinion and Order
affirming the decision of the Defendant with regard to Plaintiff’s residual functional capacity,
but remanding the case to the Defendant for further proceedings regarding Plaintiff’s first issue,
whether the ALJ appropriately applied the treating physician rule (Docket No. 17).
Plaintiff’s Motion for Attorney Fees was filed pursuant to the Equal Access to Justice Act
(“EAJA”) (Docket No. 19).
III. EAJA STANDARD FOR AWARDING FEES
The EAJA requires, in some situations, payment of fees and expenses to a prevailing
party in any action against the United States, or any agency or official thereof. This is true unless

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either: (1) the position of the United States, its agency, or official was substantially justified; or
(2) special circumstances would make such an award unjust. Howard v. Barnhart, 376 F.3d 551,
554 (6th Cir. 2004) (quoting Scarborough v. Principi, 541 U.S. 401, 427 (2004)); see also 28
U.S.C. § 2412(d)(1)(A).
According to 28 U.S.C. § 2412(a)(1), a judgment for costs may be awarded to a
prevailing party in any civil action brought by or against the United States, or any agency or
official thereof. Such costs may include various court and filing fees. 28 U.S.C. § 2412(a)(1)-(2).
A prevailing party may also be eligible to receive reasonable expenses and fees of his attorneys.
28 U.S.C. § 2412(b). The United States, or any agency or official thereof, shall be liable for
such expenses and fees “to the same extent that any other party would be liable under the
common law or under the terms of any statute which specifically provides for such an award.”
28 U.S.C. § 2412(b).
Within thirty days of a final judgment, a party seeking an award of fees and expenses
shall submit to the court an application for such fees and expenses that shows: (1) the party is a
prevailing party; (2) the party is eligible to receive an award under 28 U.S.C.A. § 2412(b); (3)
the position of the United States was not substantially justified; and (4) the itemized statement
from any attorney or expert witness representing or appearing on 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).
IV. ANALYSIS
Plaintiff contends: (1) he is a prevailing party; (2) he is eligible to receive EAJA fees;
and; (3) the position of the government in denying his DIB and SSI was not substantially

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justified(4) the record has been properly supplemented with the basis for attorney fee
calculations (Docket No. 19). Plaintiff seeks an award of attorney fees totaling $2,375 (Docket
No. 19).
Defendant does not object to Plaintiff’s Motion for Attorney Fees nor to the specific
amount requested (Docket No. 20).
A.

THE PREVAILING PARTY
Plaintiff contends he is a prevailing party for purposes of the EAJA requirements because

he succeeded in obtaining a remand to the Defendant (Docket No. 19). A Social Security
claimant who obtains a remand order pursuant to sentence four of 42 U.S.C. § 405(g) is a
prevailing party for purposes of the EAJA. Olive v. Comm’r of Soc. Sec., 534 F.Supp.2d 756,
758 (N.D. Ohio 2008) (citing Shalala v. Schaefer, 509 U.S. 292 (1993)).
Here, Plaintiff was awarded a remand order pursuant to sentence four of 42 U.S.C. §
405(g) on September 12, 2012 (Docket No. 17). Defendant does not dispute Plaintiff’s
prevailing party status (Docket No. 20). Plaintiff is therefore a prevailing party for purposes of
the EAJA.
B.

ELIGIBILITY FOR AN AWARD
Under prong two of the test set forth in 28 U.S.C. § 2412(d)(1)(B), the moving party

must be eligible to receive the award of attorneys’ fees and/or expenses. The statute defines
“eligible party” as “an individual whose net worth did not exceed $2,000,000 at the time the civil
action was filed.” 28 U.S.C. § 2412(d)(2)(B).
Although not specifically stated, by simply filing his Motion for Attorney Fees, Plaintiff
asserts he is an individual whose net worth did not exceed $2,000,000 at the time his civil action

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was filed (Docket No. 19). Plaintiff indicated that while he was looking for work, he was unable
to keep a job for any significant length of time (Docket No. 10, p. 50 of 490). Plaintiff stated
that he has tried more than forty times since 1993 to obtain and keep employment (Docket No.
10, p. 51 of 490). Given these circumstances, it is improbable Plaintiff’s net worth exceeded
$2,000,000 at the time of filing. Defendant does not contest the issue of Plaintiff’s net worth
(Docket No. 20). The Magistrate concludes Plaintiff is therefore eligible for the award.
C.

SUBSTANTIAL JUSTIFICATION
What determines “substantial justification” is based on a wide variety of factual contexts

and legal issues. Essentially, the standard is one of reasonableness, making the pertinent inquiry
whether the United States presented a reasonable position based in both law and fact. Pierce v.
Underwood, 487 U.S. 552, 565 (1988).
The government bears the burden of establishing that the position of the United States is
substantially justified. Olive, 534 F.Supp.2d at 758. To satisfy this burden, the United States
must show its position was “substantially justified or that special circumstances make an award
unjust.” Id. The government’s position is substantially justified “if it is ‘justified in substance or
in the main – that is, justified to a degree that could satisfy a reasonable person.’” Id. (citing
Pierce, 487 U.S. at 565.
Attorney fees should not be awarded simply because the government lost the case on the
merits. Olive, 534 F.Supp.2d at 758 (citing Brouwers v. Bowen, 823 F.2d 273, 275 (8th Cir.
1987)). A court must be careful to maintain the distinction between a lack of substantial
evidence, which results in a remand to the Defendant, and a lack of substantial justification,

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which results in an award of attorney’s fees. Olive, 534 F.Supp.2d at 758 (emphasis added).
The government’s position “‘can be justified even though it is not correct.’” Id. at 759.
Plaintiff alleges Defendant was not substantially justified in its denial of benefits (Docket
No. 19, p. 2 of 7). Specifically, Plaintiff claims that the ALJ did not provide “good reasons” for
rejecting the opinion of Plaintiff’s treating physician (Docket No. 19, pp. 2-3 of 7). Plaintiff
states that a failure to provide “good reasons” for rejecting the opinion of his treating physician
is tantamount to a procedural violation, even if the administrative decision would otherwise be
supported by substantial evidence (Docket No. 19, pp. 2-3 of 7). Plaintiff contends that the ALJ
should have applied the factors listed in 20 C. F. R. §§404.1527(c)(2) and 416.927(c)(2) (Docket
No. 19, p. 3 of 7). Plaintiff claims that because the ALJ’s decision does not include an analysis
of these factors, the Defendant’s findings and conclusion were neither applicable nor supported
by substantial evidence (Docket No. 19, p. 3 of 7). Defendant does not contest Plaintiff’s
allegations (Docket No. 20). Therefore, this Magistrate finds that the Defendant’s findings and
conclusions were not substantially justified.
D.

THE BASIS FOR THE AWARD
Plaintiff argues he is entitled to attorney fees totaling $2,375 (Docket No. 19). This

amount represents an expenditure of nineteen hours by Plaintiff’s counsel multiplied by an
hourly rate of $125, the current statutory cap for attorneys’ fees (Docket No. 19, p. 5 of 7).
Defendant does not contest this amount (Docket No. 20).
1.

COMPENSABLE HOURLY RATE

Once a court concludes attorney fees should be awarded under the EAJA, the Court must
determine if the fee itself is reasonable. 28 U.S.C. § 2412(d)(2)(A). The burden of proof for this

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reasonableness determination falls on the party seeking the award. Copeland v. Marshall, 641
F.2d 880, 937 (6th Cir. 1980). Counsel for the prevailing party should make a good faith effort
to exclude hours that are excessive, redundant, or otherwise unnecessary from the fee request. Id.
at 891. “Hours may be cut for duplication, padding or frivolous claims.” Holden v. Bowen, 668
F.Supp 1042 (N.D. Ohio 1986). The court must identify those hours, beyond the allowances for
duplicative services, and articulate the reasons for their elimination from hours of service
adequately documented. Id. Under the EAJA, “an award of fees for preparation of the fee
application is compensable.” See Seymore v. Sec’y of Health & Human Servs., 738 F.Supp. 235
(N.D. Ohio 1990).
Upon review of the itemized statement of services provided by Plaintiff’s counsel, this
Magistrate determines the request for fees is adequately documented. Counsel expended nineteen
hours in her representation of Plaintiff (Docket No. 19). Counsel made a good faith effort to be
clear and succinct in her pleadings. There is neither padding nor the assertion of frivolous
claims. There are no excessive, redundant, or unnecessary hours included in the schedule of
services. The Magistrate finds the compensable hours in this case to be nineteen.
2.

HOURLY RATES

According to 28 U.S.C. § 2412(d)(2)(A), the amount of fees awarded shall be based upon
prevailing market rates for the kind and quality of services furnished. The EAJA bases attorney
fees on the market rate, capping the hourly rate at $125 unless an increase in the cost of living or
a special factor justifies a higher fee. 28 U.S.C. § 2412(d)(2)(A). The Sixth Circuit has
recognized that the EAJA allows for a cost-of-living adjustment. Bryant v. Commissioner of
Social Security, 578 F.3d 443, 446 (6th Cir. 2009). In requesting an increase in the hourly fee

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rate, a plaintiff bears the burden of producing appropriate evidence to support the requested
increase. Id. (See Blum v. Stensen, 465 U. S. 886, 898 (1984). A plaintiff must produce
satisfactory evidence in addition to the attorney’s own affidavits that the requested rates are in
line with those prevailing in the community for similar services by lawyers of reasonably
comparable skill, experience and reputation. Id. (citing Blum, 465 U. S. at 895, n. 11).
Plaintiff neither makes policy arguments nor submits satisfactory evidence for an
enhanced hourly rate under the cost of living adjustment or special factors paradigm. Begley v.
Sec’y of HHS, 966 F2d 196, 200 (6th Cir. 1992). Instead, Plaintiff seeks an award under the
current statutory rate of compensation and Defendant does not object to Plaintiff’s request. The
undersigned Magistrate finds that Plaintiff is entitled to an award of fees based on the hourly rate
of $125.
3.

TOTAL AWARD

In the present case, Plaintiff did not request costs or other expenses incurred as a result of
obtaining the remand; accordingly, the attorney fee award of $2,375 (19 hours x $125 per hour)
represents the total award. This award of attorney fees is payable to Plaintiff. See Astrue v.
Ratliff, 130 S.Ct. 2521, 2527 (2010).
V. CONCLUSION
For these reasons, the Magistrate grants Plaintiff’s Motion for Attorney Fees.
IT IS SO ORDERED.

/s/Vernelis K. Armstrong
United States Magistrate Judge

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Date: March 19, 2013

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