Crenshaw v. Commissioner of Social Security
Filing
26
Memorandum Opinion and Order: Plaintiff's application for EAJA attorney fees is granted in part. The Court will award a total of $5,595.63 for the services performed, representing $5,455.63 for attorney services and $140.00 for appellate assistance services. This amount shall be paid to the plaintiff's attorney's law firm following the procedure outlined in the paragraph immediately above. (Related Doc # 23 ). Judge Sara Lioi on 9/5/2014. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
KIANA M. CRENSHAW,
PLAINTIFF,
vs.
COMMISSIONER OF SOCIAL
SECURITY,
DEFENDANT.
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CASE NO. 1:13CV1845
JUDGE SARA LIOI
MEMORANDUM OPINION
AND ORDER
Before the Court is the application of plaintiff Kiana M. Crenshaw (“Crenshaw”
or “plaintiff”) for an award of attorney fees pursuant to the Equal Access to Justice Act, 28
U.S.C. § 2412(d) (“EAJA”). (Doc. No. 23 [“Application”].) The Commissioner of Social
Security (“Commissioner” or “defendant”) has filed a response (Doc. No. 24 [“Response”]) and
plaintiff filed a reply (Doc. No. 25 [“Reply”]). This matter is fully briefed and ripe for
determination.
I. BACKGROUND
Crenshaw filed the instant action on August 22, 2013 seeking review of the
Commissioner’s denial of her application for supplemental security income. (Doc. No. 1.) On
January 23, 2014, the Court granted the Commissioner’s unopposed motion to remand under
sentence four of 42 U.S.C. § 405(g) for further proceedings. (Doc. Nos. 21, 22.)
Crenshaw now moves for attorney fees in the amount of $7,227.30, representing
35.1 hours of service provided by Attorney Kirk B. Roose,1 2.8 hours of service by Attorney
Melissa L. Kunder, and 2.8 hours of service provided by Mr. Roose’s appellate assistant, Diane
J. Shriver. Plaintiff is requesting a $187.00 hourly rate for both attorneys’ services and a $50.00
hourly rate for the appellate assistant’s services.
The Commissioner opposes the request, challenging the reasonableness of the
both the hourly rates and the time spent. The Commissioner expressly offers no challenge as to
the timeliness of the fee application and as to plaintiff’s prevailing party status.2
II. DISCUSSION
A.
Fees for the Two Attorneys
The EAJA provides that the amount of any attorney fee awarded “shall be based
upon prevailing market rates for the kind and quality of the services furnished, except that . . .
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, justify a higher fee.” 28 U.S.C. § 2412(d)(2)(A)(ii).
“In requesting an increase in the hourly-fee rate, Plaintiffs bear the burden of
producing appropriate evidence to support the requested increase.” Bryant v. Comm’r of Soc.
Sec., 578 F.3d 443, 450 (6th Cir. 2009).
Here, plaintiff requests an hourly rate of $187.00 for her attorneys’ services,
based upon several factors.
1
In her reply brief, Crenshaw requests an additional 9.0 hours of attorney services for the drafting of the reply brief.
2
The EAJA requires the government to pay a prevailing social security plaintiff’s attorney’s fees and costs “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); Pierce v. Underwood, 487 U.S. 552, 565 (1988); Howard v. Barnhart,
376 F.3d 551, 553 (6th Cir. 2004).
2
1.
Arguments Regarding an Increased Hourly Rate for Attorney Services
a.
Increased Cost of Living
Plaintiff supplies Exhibit 3 to her application as the basis for the computation of
the increased hourly rate based on increased cost of living. Plaintiff argues that there has been a
1.496% increase in the cost of living from 1996 (when the EAJA cap of $125 was set) until April
2013 (the time during which she alleges most of counsel’s work was performed), as reflected in
the Consumer Price Index (“CPI”) for all urban consumers. (See Application, Ex. 3.) However,
other exhibits to the application show Attorney Roose’s services as having been performed
solely between July 2013 and December 2013 (with the bulk of services in November and
December 2013), and Attorney Kunder’s services solely in December 2013. (Id., Exs. 1 and 2.)
That said, although the indices for November/December 2013 are slightly different than the April
2013 index cited by plaintiff, the resulting increase in the cost of living is the same – 1.496.
Applying that to the EAJA cap of $125/hour, plaintiff requests an hourly rate of $187.00.
The Commissioner argues that the EAJA expressly limits fees to $125 per hour
and does not mandate or provide for automatic changes to reflect changes in the cost of living.
The Commissioner cites Begley v. Sec’y of HHS, 966 F.2d 196, 199 (6th Cir. 1992), for the
proposition that the “[statutory] rate is a ceiling, not a floor.” In Begley, the court emphasized,
however, that cost-of-living adjustments are left “to the sound discretion of the district court.” Id.
(citing Chipman v. Sec’y of HHS, 781 F.2d 545, 547 (1986).) The Commissioner also argues that
plaintiff cannot justify a higher rate based on the attorney submissions attached to her
application. (See Newman Decl. [Doc. No. 23-4]; Margolius Aff. [Doc. No. 23-4]; Davis Aff.
[Doc. No. 23-6].) The Commissioner accurately notes that both Margolius and Davis indicate in
their affidavits that they typically request an hourly rate of $125.00. The Court further notes,
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however, that these attorneys also indicate that their rationale for that rate request is simple
expediency – to avoid the additional expenses that would be incurred arguing for a higher rate.
The Commissioner asserts that the record, including the attorneys’ affidavits, “provide no
specific evidence of what [the] prevailing hourly rate actually is[.]” (Response at 723.)
In reply, Crenshaw argues that the Commissioner has failed to mention or
distinguish all the cases in the Northern District of Ohio where judges, including the
undersigned, have rejected any assertion that the hourly rate should not be increased to recognize
an increased cost of living. (See Reply at 731-35, citing cases.)
b.
Hourly Attorney Rates in Cleveland
Plaintiff also argues that, since the standard is “prevailing market rate,” the typical
hourly rates charged by attorneys in Cleveland, including her own attorney, are relevant.
Crenshaw points to the declaration of Dianne R. Newman, an experienced attorney whose
current practice is exclusively in Social Security, which states, in relevant part:
12.
The usual hourly rate stated by attorney Kirk B. Roose, $300, is in line
with the rates prevailing in the Cleveland area for similar services by
lawyers of reasonably comparable skill, experience, and reputation. . . .
13.
A rate of less than $200 per hour would be less than the rates prevailing in
the Cleveland area for similar services by lawyers of reasonably
comparable skill, experience, and reputation.
(Newman Decl. at 676.) Crenshaw further cites the affidavit of Marcia Margolius, another
attorney experienced in Social Security practice, who attests that she has been awarded fees in
such cases at rates of $350 and $400 per hour. (Margolious Aff. ¶¶ 8, 9.) She further states that
“[t]he standard hourly rates in Social Security cases . . . are almost always higher than $75/hr and
often are higher than $150/hr.” (Id. ¶ 9.) In her opinion, “the prevailing rate for [Attorney’s
Roose’s] services in Social Security cases[] should exceed $175/hr to $200/hr[.]” (Id. ¶ 10.)
4
Crenshaw also relies on an Ohio State Bar Association survey profiling attorney
hourly billing rates in Ohio during 2010, and The Survey of Law Firm Economics released in
July 2011, but based on 2010 data. (Application, Exs. 8, 9.) She cites several cases in the
Northern District of Ohio where the rates of other attorneys were accepted as evidence of the
need to increase the hourly rate. (Application at 665-66, citing cases.) Crenshaw also notes that
the Commissioner has settled claims with Social Security litigants, agreeing to hourly rates in
excess of $125. (Id. at 666.)
The Commissioner rejects any reference to the rates of other attorneys and argues
that the statutory rate is sufficient, even in this locale, as evidenced by the fact that some
attorneys routinely request only the statutory rate. The Commissioner also rejects any reference
to the two surveys submitted by plaintiff as proof of “prevailing market rates” because they both
are broad surveys reporting average rates of attorneys who not only do not practice Social
Security law, but also do not practice law in the Cleveland area. Finally, the Commissioner
argues that, if the rate is to be increased based on the CPI, the Court should measure the cost of
living increase based on the “Urban Consumers – All Items – Cleveland-Akron” average, rather
than the “Urban - All Items” used by plaintiff.
2.
Conclusion as to the Hourly Rate for Attorneys
Having considered all the arguments and the available record, the Court is not
particularly persuaded by the attorney affidavits attached to the application because two are
dated July 2012 (well over a year before the bulk of the attorney services in this case) and one is
dated November 2012 (a year before). Attorney Roose’s own affidavit is dated August 2013, at
the time that he was rendering services to Crenshaw, but the Court is somewhat hesitant to
unduly credit an attorney’s own affidavit as the sole support for increasing his hourly rate above
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the statutory cap. That said, the Court concludes that the change in the cost of living over the
years justifies an increase of the statutory rate.
The Court agrees with other judges of the Northern District of Ohio that the
appropriate measure of inflation should be the “Midwest Urban” CPI rather than the “U.S. City
Average.” See, Gunther v. Comm’r of Soc. Sec., 943 F. Supp. 2d 797, 803-04 (N.D. Ohio 2013)
(the Midwest Urban CPI “is reasonable and perhaps most accurate as it represents the cost of
living increase on a local basis[]”) (citing Mohr v. Comm’r of Soc. Sec., No. 3:11CV2731, 2013
WL 557176 (N.D. Ohio Feb. 12, 2013); Vasquez v. Astrue, No. 3:11-cv-0177, 2012 WL 3637676
(N.D. Ohio Aug. 22, 2012); Jaworski v. Astrue, No. 1:10-cv-02936, 2012 WL 3552634 (N.D.
Ohio Aug. 16, 2012); Killings v. Comm’r of Soc. Sec., No. 1:09CV845, 2009 WL 3614956 (N.D.
Ohio Oct. 28, 2009)).
Using the CPI-U for the Midwest Region,3 averaging the values for November
2013 (219.483) and December 2013 (219.033), the time during which virtually all of the work in
this case occurred, and dividing by the value for March 1996 (when the EAJA’s statutory cap
was set), the Court calculates the cost of living increase to be 1.45 (i.e., 219.258 ÷ 151.74 =
1.44533). Multiplying $125 by that increase, the appropriate hourly rate would be $181.25 (i.e.,
$125 x 1.45).
Next, the Court turns to the hours claimed by Attorneys Roose and Kunder. (See
Application, Exs. 1 and 2.) The Commissioner argues that the hours sought are “excessive and
unreasonable.” (Response at 724.)
3
This can be found on the website of the Bureau of Labor Statistics (http://www.bls.gov).
4
In Ex. 3 to her application, plaintiff incorrectly cites this value as 155.7.
6
Plaintiff’s brief on the merits (Doc. No. 18) was filed on December 26, 2013 and
consisted of seventeen (17) pages, plus a four-page fact sheet and two pages reviewing the
hearing testimony. The time sheets submitted by Attorney Roose itemize the following 31.3
hours:
11/24/13
12/20/13
12/21/13
12/23/13
12/24/13
12/26/13
Begin research on brief and issues
Continue research for brief and fact sheet
Continue research for brief and fact sheet
Confer with attorney regarding preparing
chronology of disabilities
Continue research for brief and fact sheet
Complete research and brief, fact sheet, and
tables; file same
3.0
4.6
7.8
.1
2.0
13.8
(Application, Ex. 1 at 670.) In addition, Attorney Kunder itemizes 2.8 hours relating to creating a
“chronology of disabilities.” (Id., Ex. 2 at 672.) This suggests that a total of 34.1 hours was spent
on the brief, 31.3 of those hours by an experienced attorney.5 This is excessive, even where, as
here, the brief is compactly written and contains little or no “boilerplate” language. However, the
Court rejects the Commissioner’s request to reduce the hours by half, instead crediting Attorney
Roose’s argument in the reply brief that “[i]t was a challenge to demonstrate that [Crenshaw]
could be disabled by an episodic skin condition.” (Reply at 737.) The Court concludes that 21.8
hours is the appropriate amount of time to allow for this work. The remaining 3.8 hours itemized
by Attorney Roose are not excessive for the tasks performed. Therefore, the Court will allow a
total of 25.6 hours based on the application.
Finally, in her reply brief related to the instant fee application, Crenshaw asks this
Court to add an additional 9.0 hours to account for research on the reply brief itself. The Court
concludes that this is excessive and will reduce that amount to 4.5 hours.
5
The application includes no credentials for Attorney Kundler, other than to identify her as working at the firm of
Roose and Ressler.
7
In sum, the Court reduces the original 37.9 hours by 12.3 hours, and further
reduces the 9.0 hours claimed for the final reply brief by 4.5 hours, for a resulting total of 30.1
hours. At the hourly rate of $181.25, this amounts to an award of $5,455.63 for the services of
Attorneys Roose and Kunder.
B.
Fees for Services Performed by Appellate Assistant Shriver
Plaintiff further seeks to recover fees for services performed by her counsel’s
appellate assistant. The Commissioner argues that the 2.8 hours requested should be reduced to
1.8 hours because one hour was spent by Shriver performing legal services for which she is not
licensed. (Response at 725-26, referring to Shriver’s “prepar[ation of] outline and some language
for Plaintiff’s brief and fact sheet”.) Plaintiff argues in reply that it is permissible for a nonattorney to perform this kind of preparatory work. (Reply at 741-42, citing Missouri v. Jenkins by
Agyei, 491 U.S. 274, 285, 288, n.10, 109 S. Ct. 2463, 105 L. Ed. 2d 229 (1989).)
The Court finds support in the case law of the Northern District of Ohio for
awarding fees for services of the kind performed by Ms. Shriver. See, e.g., Draper v. Comm’r of
Soc. Sec., No. 3:11CV2287, 2013 WL 5878935, at * 5 (N.D. Ohio Mar. 15, 2013). Having
examined the list of services performed and the hours claimed (Application, Ex. 2), the Court
finds them reasonable. Accordingly, an additional amount of $140.00 (2.8 hours x $50/hr) shall
be awarded.
C.
Person Entitled to Payment
In Astrue v. Ratliff, 560 U.S. 586 (2010), the Supreme Court held that EAJA fees
are payable to the plaintiff and are subject to setoff if the plaintiff has outstanding federal debts.
The Court also implicitly recognized that the payment could be made directly to a plaintiff’s
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attorney only in cases where the plaintiff both owes no debt to the government and had assigned
any right to EAJA fees to the attorney.
Here, Crenshaw has “consent[ed] to have all EAJA fees paid to [her] attorneys.”
(See Contingent Fee Agreement [Doc. No. 23-14].) However, plaintiff has made no showing that
she owes no debt to the government, such that it would be appropriate for this Court to order an
immediate, direct payment to her attorney’s law firm. See, e.g., Cutler v. Astrue, No. 1:10cv343,
2010 WL 901186, at *1 (N.D. Ohio Mar. 14, 2011).
Therefore, the Court orders the Commissioner to determine within 30 days of the
date of this order whether plaintiff owes a preexisting debt to the government, to offset that debt
(if any) against the award herein, and to thereafter directly pay the balance to plaintiff’s
attorney’s law firm, to be credited against the total amounts owed by plaintiff to her attorney.
This procedure shall be completed and payment made by October 3, 2014 at the latest.
III. CONCLUSION
For the reasons set forth herein, plaintiff’s application for EAJA attorney fees is
granted in part. The Court will award a total of $5,595.63 for the services performed,
representing $5,455.63 for attorney services and $140.00 for appellate assistance services. This
amount shall be paid to the plaintiff’s attorney’s law firm following the procedure outlined in the
paragraph immediately above.
IT IS SO ORDERED.
Dated: September 5, 2014
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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