Benyo v. Commissioner of Social Security

Filing 23

Opinion and Order signed by Judge James S. Gwin on 3/22/13. The Court grants plaintiff's application for award of attorney fees, awards attorney fees to plaintiff at the rate of $175.60 per hour for 2012 compensable hours and $175.00 per hour for 2011 compensable hours. Payment shall be consistent with this opinion. (Related Doc. 20 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
------------------------------------------------------:
SAMANTHA BENYO,
:
:
Plaintiff,
:
:
vs.
:
:
CAROLYN W. COLVIN,
:
Acting Commissioner of Social Security,
:
:
Defendant.
:
:
-------------------------------------------------------

CASE NO. 1:12-CV-02088

OPINION & ORDER
[Resolving Docs. No. 20, 22]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiff Samantha Benyo moves the Court for an award of attorney fees under the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412.1/ Though the Commissioner does not dispute
her entitlement to fees, or the reasonableness of the hours billed on her case, the Commissioner
challenges the hourly billing rates used in calculating in her fee application.2/ Because Benyo’s
counsel’s experience in this field warrants a fee increase beyond the presumptive statutory
maximum, the Court GRANTS Benyo’s application, AWARDS attorney fees to Benyo at the rate
of $175.60 per hour for 2012 compensable hours and $175 per hour for 2011 compensable hours,
and ORDERS payment consistent with this opinion.
I. Background
On August 13, 2012, Plaintiff Samantha Benyo filed a complaint seeking review of the
Defendant Commissioner of Social Security’s decision to deny her application for supplemental

1/

Doc. 20.

2/

Doc. 22 at 2.

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Case No. 1:12-CV-02088
Gwin, J.
security income and disability benefits.3/ On January 28, 2013, the parties jointly moved the Court
to reverse the Commissioner’s decision and remand the case back to the Commissioner for further
proceedings.4/ On January 20, 2013, the Court granted the parties’ motion.5/
On March 3, 2013, Benyo 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.6/
She seeks an award of attorney fees at the rate of $175.00 per hour for compensable hours billed in
2011 and $175.60 per hour in 2012.7/
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.8/ 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.9/
The EAJA does, however, provide a presumptive $125.00 statutory cap on the hourly billing
rates that a prevailing party may be reimbursed.

3/

Doc. 1 at 2.

4/

Doc. 17.

5/

Doc. 18.

6/

28 U.S.C. § 2412(d)(1)(A).

7/

Doc. 20-1 at 3.

8/

28 U.S.C. § 2412(d)(1)(A).

9/

Shalala v. Schaefer, 509 U.S. 292 (1993).

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Case No. 1:12-CV-02088
Gwin, J.
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
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.10/
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.”11/
III. Discussion
The parties do not dispute Benyo’s entitlement to attorney fees. Nor do the parties dispute
the number of hours billed by Benyo’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.
Benyo 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 $125.00.12/ Second, she says that she is entitled to
increased fees because the prevailing hourly rate customarily charged by attorney’s in Cleveland is
higher than the statutory cap.13/ Third, she says, her attorney charges more than the rate requested
when she submits a Social Security fee petition.14/ She also notes her attorney’s over-thirty years of
experience in Social Security cases.15/
A. Cost-of-Living Increases

10/

28 U.S.C. § 2412(d)(1)(A).

11/

Bryant v. Commissioner of Soc. Sec., 578 F.3d 443, 450 (6th Cir. 2009).

12/

Doc. 20-1 at 2.

13/

Id.

14/

Id.

15/

Doc. 20-2 at 1.

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Case No. 1:12-CV-02088
Gwin, J.
Benyo 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.16/ But unlike other jurisdictions, the Sixth Circuit does not treat Consumer Price
Index-based fee increases “as perfunctory or . . . mandatory” but “leaves the matter to the sound
discretion of the district court.”17/ In the Sixth Circuit, evidence from the Consumer Price Index is
“not enough” to justify an increase in fees.18/
Here, apart from her insufficient reference to the Consumer Price Index, Benyo fails to make
a showing that 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.19/
B. Prevailing Rates and Special Factors
Benyo says that she is entitled to a fee increase because the prevailing market rates for
Cleveland attorneys 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.20/ Even if the prevailing local rate for identical
services exceeds the statutory cap, Benyo must still demonstrate special factors that warrant an
increased award before she may receive enhanced fees.
16/

28 U.S.C. § 2412(d)(1)(A).

17/

Begley v. Sec’y of Soc. Sec., 966 F.2d 196, 200 (6th Cir. 1992).

18/

Bryant, 578 F.3d at 450; see also Darabed v. Astrue, No. 1:10-cv-2626, ECF Doc. No. 26 (N.D. Ohio M ay
30, 2012) (denying increased-rate fee award); Williams v. Astrue, No. 3:10-cv-02354, ECF Doc. No. 25, at 5 (N.D. Ohio
May 23, 2012) (same).
19/

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.).
20/

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.”).

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Case No. 1:12-CV-02088
Gwin, J.
In support of her requested fee increase, Benyo submits evidence of median attorney billing
rates from the Ohio State Bar Association.21/ But the Court must consider “the prevailing market rate
for attorneys’ services of the kind and quality rendered in this case.”22/ Here, Benyo has failed to
submit evidence with indices as to kind or quality of services rendered, and thus, the Ohio State Bar
Association survey data is insufficient. The billing data from Benyo’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.23/ 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.
Benyo also says that she is entitled to increased fees because her attorney customarily charges
more than $125.00 per hour to submit Social Security fee petitions.24/ 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.”25/ And the public record shows otherwise.26/

21/

Doc. 20-7.

22/

Begley, 966 F.2d at 200 (emphasis added).

23/

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,
2010-11, 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.”
24/

Doc. 20-1 at 2.

25/

Matthews-Sheets, 653 F.3d at 563.

26/

Bouter v. Comm’r of Soc. Sec., No. 1:09-cv-2682, ECF Doc. No. 21 at 1 (N.D. Ohio Dec. 1, 2011) (motion
for attorney fees) (requesting fee award for Social Security advocacy at rate of $125.00 per hour.)

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Case No. 1:12-CV-02088
Gwin, J.
Similarly, though Benyo’s counsel says that her attorney’s practice is both specialized and
experienced,27/ niche expertise “does not in itself warrant a fee in excess of the statutory rate.”28/ 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.29/ General evidence that
her attorney specializes in Social Security advocacy does not justify enhanced fees.30/
Nonetheless, Benyo says that recent cases from the Northern District of Ohio have recognized
enhanced fees as the customary hourly rate.31/ The Court acknowledges that Judges in this district
have on occasion granted fees at rates above the presumptive cap.32/ Nonetheless, no authority
excuses the Court from its duty to exercise its discretion consistent with the evidence in this
application.
Yet in context of this discretion, the Court recognizes that Benyo’s counsel has over-thirty
years of experience in Social Security law.33/ Benyo’s counsel says she has represented thousands
of claimants in social security cases and has taught the subject as an adjunct professor at Cleveland
Marshall College of Law.34/ With experience comes greater familiarity, facility, and, therefore,
speed. While no two cases are identical, economies based on Benyo’s counsel’s experience in this

27/

Doc. 20-2.

28/

Stockton v. Shalala, 36 F.3d 49, 50 (8th Cir. 1994).

29/

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).
30/

See Fawcett v. Barnhart, No. 4:04-cv-2448, 2008 W L 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
practice-based accreditation] does not justify the enhanced hourly rate.”).
31/

Doc. 20-1.

32/

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).
33/

Doc. 20-2 at 1.

34/

Id.

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Case No. 1:12-CV-02088
Gwin, J.
area at least warrant that the time spent on this matter be compensated at a higher rate.35/
IV. Conclusion
For the reasons above, the Court GRANTS Benyo’s application, AWARDS attorney fees
to Benyo at the rate of $175.60 per hour for 2012 compensable hours and $175 per hour for 2011
compensable hours, and ORDERS payment consistent with this opinion.
IT IS SO ORDERED.

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

Dated: March 22, 2013

35/

See, e.g., Willis v. Comm’r of Soc. Sec., 10-CV-594, 2012 W L 4322604 (S.D. Ohio Sept. 20, 2012) (citing
attorney's thirty-five years of experience).

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