Escobar v. Commissioner of Social Security

Filing 26

DOCKETING ERROR - DOCUMENT FILED IN WRONG CASE Memorandum Opinion and Order granting in part and denying in part 23 Plaintiff's Motion for attorney fees Under the EAJA. Plaintiff is awarded a total of $7,610.69 to fully satisfy all reasonable attorney's fees, expenses, and costs incurred under EAJA. Magistrate Judge Nancy A. Vecchiarelli on 3/20/2015. (G,W) Modified on 3/20/2015 (G,W).

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

MIGUEL J. RODRIGUEZ,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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CASE NO. 3:11-cv-398
MAGISTRATE JUDGE
VECCHIARELLI

MEMORANDUM OPINION AND
ORDER

Plaintiff, Miguel J. Rodriguez (“Plaintiff”), filed a motion for attorney’s fees,
expenses, and costs in the amount of $5,210.22 pursuant to the Equal Access to Justice
Act (“EAJA”), 28 U.S.C. § 2412. (Doc. No. 24.) Defendant, Michael J. Astrue, the
Commissioner of Social Security (“the Commissioner”) does not oppose an award under
EAJA, but (1) seeks a reduction in the number of hours of services rendered by Plaintiff’s
counsel’s “Appellate Assistant,” (2) seeks a reduction in the rate at which counsel’s hours
were billed; and (3) challenges to whom any award may be made payable.1 (Doc. No. 25.)
Plaintiff also seeks a supplemental award of attorney’s fees in the amount of
$1,679.49 for services rendered in replying to the Commissioner’s response in opposition
to his EAJA application (Doc. No. 26); and a supplemental award of attorney’s fees in the

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The Commissioner also argues that Plaintiff mislabeled his request for $40.00 for
making copies of legal documents an “expense,” as it should be labeled a “cost.”
The Commissioner continues that, “given the nature of electronic court filing and
docketing, as well as electronic communication available to Plaintiff’s counsel,
one questions the necessity of making any paper copies at all, even if designated
as a cost.” (Def.’s Response 7.) The Commissioner does not, however, argue
that Plaintiff should be denied $40.00 in costs related to making copies of legal
documents.

amount of $1,011.30 for services rendered in preparing an evidentiary supplement to his
EAJA application pursuant to this Court’s order (Doc. No. 28). The Commissioner has not
opposed Plaintiff’s supplemental requests.
For the reasons set forth below, Plaintiff’s motion for EAJA fees is GRANTED in
part and DENIED in part; that is, Plaintiff is awarded a total of $7,610.69 to fully satisfy all
reasonable attorney’s fees, expenses, and costs incurred under EAJA.
I.

PROCEDURAL HISTORY

On March 30, 2006, Plaintiff filed applications for a Period of Disability, Disability
Insurance Benefits, and Supplemental Security Income, and alleged a disability onset date
of August 22, 2004. His applications were denied initially and upon reconsideration, so he
requested a hearing before an administrative law judge (“ALJ”). On April 9, 2009, an ALJ
held Plaintiff’s hearing. On May 14, 2009, the ALJ found Plaintiff not disabled. The
Appeals Council declined to review the ALJ’s decision, so the ALJ’s decision became the
Commissioner’s final decision.
On February 24, 2011, Plaintiff filed his complaint to challenge the Commissioner’s
final decision; and on July 25, 2011, he filed his Brief on the Merits. Plaintiff alleged that the
ALJ’s assessments of the opinions a treating physician and state agency psychologists
were not supported by substantial evidence. On February 6, 2012, the Court reversed the
Commissioner’s final decision and remanded this case because the ALJ failed to give
good reasons for giving Plaintiff’s treating physician’s opinions less than controlling weight,
and failed to explain how one of the state agency reviewing psychologist’s opinions
supported the ALJ’s determination when they appeared to contradict it. (Doc. No. 22.)
On April 30, 2012, Plaintiff filed his EAJA application. (Doc. No. 24.) Plaintiff seeks
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an initial award of $5,210.22, the breakdown of which is as follows:
•

$884.89 for services rendered by attorney Kirk B. Roose, for 4.9 hours of
services rendered between April 14, 2011, and April 26, 2012, at a rate of
$180.59 per hour;

•

$4,081.33 for services rendered by attorney Eric Schnaufer, for 22.6 hours
of services rendered between June 15, 2011, and February 7, 2012, at a
rate of $180.59 per hour;

•

$204.00 for services rendered by “Appellate Assistant” Diane J. Shriver, for
5.1 hours of services rendered between February 24, 2011, and February
6, 2012, at a rate of $40.00 per hour;

•

$40.00 for the cost of making copies of the complaint, briefs, and EAJA
application, based on a total of 160 pages at $0.25 per page.

(See Doc. No. 24.)
On May 14, 2012, the Commissioner filed his response. (Doc. No. 25.) The
Commissioner does not oppose an award under EAJA, but seeks a reduction in the
number of hours of services rendered by Ms. Shriver and in the rate at which counsel’s
hours were billed, and challenges to whom any award may be made payable.
On May 28, 2012, Plaintiff filed a reply brief. (Doc. No. 26.) In his reply, Plaintiff
seeks an additional $1,679.49 in attorney’s fees, based on 9.3 hours of services rendered
by Mr. Roose on May 27 and 28, 2012, in relation to the reply. The Commissioner did not
respond to Plaintiff’s request for a supplemental award.
On June 28, 2012, the Court ordered Plaintiff to supplement his EAJA application
with additional evidentiary support and directed the Commissioner to file any response
within seven days. (Doc. No. 27.) On July 5, 2012, Plaintiff filed his supplemental EAJA
application and requested an additional award of $1,011.30 for services rendered by Mr.
Roose in relation to preparing it. (Doc. No. 28.) The Commissioner did not respond to

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Plaintiff’s supplemental EAJA application and additional request for fees.
II.

LAW & ANALYSIS

EAJA permits an award of only reasonable attorney’s fees. See 28 U.S.C.
§2412(d)(2)(A). The most useful starting point for determining the amount of a reasonable
fee is the number of hours reasonably expended on the litigation multiplied by a reasonable
hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); cf. Comm’r, I.N.S. v. Jean,
496 U.S. 154, 161 (1990) (“[O]nce a private litigant has met the multiple conditions for
eligibility for EAJA fees, the district court’s task of determining what fee is reasonable is
essentially the same as that described in Hensley.”) The Court will address the
Commissioner’s objections to the reasonableness of hours expended and billing rate in
turn.
A.

The Reasonableness of Hours Expended on Services Rendered

Counsel for a prevailing party under EAJA should make a good faith effort to
exclude from a fee request hours that are excessive, redundant, or otherwise
unnecessary. See Hensley, 461 U.S. at 434. Courts should exclude hours that were not
“reasonably expended.” Id. The Commissioner contends that Plaintiff should not be
compensated for the 5.1 hours of services rendered by Ms. Shriver because her services
were purely clerical or secretarial. However, as explained below, some of Ms. Shriver’s
work is compensable.
Purely clerical or secretarial tasks, that is, non-legal work, should not be
billed—even at a paralegal rate—regardless of who performs the work. Missouri v.
Jenkins by Agyei, 491 U.S. 274, 288 n.10 (1989). For example, dictation and typing are
non-compensable, as they are part of the overhead of any law office. See Wiegand v.
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Sullivan, 900 F.2d 261 (Table), 1990 WL 51387, at *1 (6th Cir. 1990) (affirming the district
court’s reduction of fees). However, activities such as filing a complaint, filing service
requests, and filing return-of-service forms are clerical tasks that may be considered
sufficiently “legal work” to permit compensation, although any compensation would be at a
lesser rate. See Taylor v. Barnhart, No. 00 c 7782, 2002 WL 31654944 at *4 (N.D. Ill. Nov.
22, 2002). But see Knudsen v. Barnhart, 360 F. Supp. 2d 963, 977 (N.D. Iowa 2004)
(finding that retrieving documents, filing documents, serving summonses, and calendaring
are non-compensable because they are properly considered overhead costs); Barriger v.
Bowen, 673 F. Supp. 1167, 1170 (N.D.N.Y. 1987) (finding that mailing two letters and
serving the Assistant United States Attorney with a copy of a summons and complaint are
non-compensable because they are properly considered overhead costs).
Ms. Shriver expended time on matters that appear both legal and non-legal in
nature. Accordingly, Ms. Shriver’s hours are reduced as follows:
•

•

On March 11, 2011, Ms. Shriver expended 0.9 hours reviewing a variety of
emails from the court, and preparing and filing a “certificate confirming
notification of case information.” Plaintiff will be compensated for 0.3 hours
for preparing and filing the certificate confirming notification.

•

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On February 24, 2011, Ms. Shriver expended 2.1 hours preparing and filing
the complaint and associated paperwork, sending copies to Plaintiff, and
reviewing emails from the court. Plaintiff will be compensated for 1.0 hour
for preparing and filing the complaint.

On April 12 and May 27, 2011, Ms. Shriver expended a total of 0.6 hours
reviewing emails from the court regarding returns of service and the
Commissioner’s answer and transcript; preparing copies of the answer and
transcript and sending them to counsel; and “redocketing.”2 Plaintiff will not
be compensated for this time, as the services rendered appear purely
clerical and secretarial in nature.

It is not clear what “redocketing” is.
5

•

On July 26, 2011, Ms. Shriver expended 0.2 hours filing Plaintiff’s Brief on
the Merits and sending a copy of the brief to Plaintiff. Plaintiff will be
compensated 0.1 hour for filing the brief.

•

Between September 8 and October 12, 2011, Ms. Shriver expended 0.5
hours reviewing emails from the court and forwarding some of the emails
to counsel. Plaintiff will not be compensated for this time, as it appears
purely clerical and secretarial in nature.

•

On October 27, 2011, Ms. Shriver expended 0.2 hours filing Plaintiff’s reply
brief and sending a copy of the brief to Plaintiff. Plaintiff will be
compensated for 0.1 hours for filing the brief.

•

On November 22, 2011, Ms. Shriver expended 0.2 hours conferring with the
court regarding consenting to the Magistrate Judge’s jurisdic tion, and
preparing and mailing consent forms. Plaintiff will be compensated for this
time.

•

On November 29, 2011, and February 6, 2012, Ms. Shriver expended 0.4
hours reviewing emails from the court, sending a copy of the court’s
memorandum opinion and order and a letter to Plaintiff, emailing counsel,
and “redocketing.” Plaintiff will not be compensated for this time, as it
appears purely clerical and secretarial in nature.

In sum, Plaintiff will be compensated for 1.7 hours of Ms. Shriver’s time. As the
Commissioner has not objected to Plaintiff’s proposed rate of $40.00 per hour, and the
Court finds that rate reasonable and appropriate, that rate will be applied. Accordingly,
Plaintiff will be awarded $68.00 for services rendered by Ms. Shriver.
B.

The Appropriate EAJA Billing Rate for Attorney’s Fees

EAJA provides that “[t]he amount of fees awarded . . . shall be based upon
prevailing market rates for the kind and quality of the services furnished,” and “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); see Bryant v.

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Comm’r of Soc. Sec., 578 F.3d 443, 449-50 (6th Cir. 2009). Here, Plaintiff seeks EAJA
fees for counsel’s work at an hourly billing rate of $180.59 per hour—an upward departure
from the $125.00 cap based an increase in the cost of living caused by inflation since
1996.
In requesting an increase beyond the $125.00 per hour rate cap under EAJA,
plaintiffs bear the burden of producing appropriate evidence to support the requested
increase. Bryant, 578 F.3d at 450. That is, plaintiffs “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. (quoting Blum v. Stenson, 465 U.S. 886,
895 n.11 (1984)). It is within the courts discretion to award EAJA fees at a rate greater
than $125.00 per hour. See Begley v. Sec’y of Health & Human Servs., 966 F.2d 196,
199 (6th Cir.1992).
Plaintiff explains that the appropriate hourly billing rate under EAJA for services
rendered each year is determined by dividing the United States Bureau of Labor and
Statistics' Consumer Price Index (“CPI”)3 for the year in which services were rendered by
the CPI for March 1996, and then multiplied by $125.00. See also Lopez v. Comm’r of
Soc. Sec., No. 3:08-cv-2148, 2010 WL 1957422, at *3 (N.D. Ohio May 14, 2010) (“The
Magistrate has routinely calculated the cost of living adjustment by accounting for
increases in the cost of living between the time the $125 fee was enacted and the time
that the fee was earned . . . by comparing the CPI from March 1996 . . . to the average

3

The Bureau of Labor and Statistics’ CPI calculator may be found online at http://
www.bls.gov/data/#prices (last visited July 13, 2012).
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annual CPI during the year that counsel rendered his or her services.”). Plaintiff’s
calculation of his requested cost-of-living increase is based on the “U.S. City Average” for
“all items” for “all urban consumers” in 2011.4 Accordingly, Plaintiff explains that the EAJA
rate in this case is 224.939 divided by 155.7 and then multiplied by $125.00, which equals
$180.59.5
The Sixth Circuit has held that the CPI, alone, is insufficient evidence to warrant an
award of EAJA fees at a rate greater than $125.00. Bryant, 578 F.3d at 450. In Plaintiff’s
initial EAJA application, Plaintiff provided the resumes and time sheets of his counsel and
counsel’s staff in support of the requested cost of living increase along with the CPI. (Doc.
Nos. 24-1 through 6.) The Commissioner contended that Plaintiff’s showing remained
insufficient. Upon this Court’s order, Plaintiff supplemented his EAJA application with the
following additional evidence:
•

A report from the Ohio State Bar Association titled The Economics of Law
Practice in Ohio, Desktop Reference for 2010 indicates that the average
hourly billing rate of attorneys in the greater Cleveland area in 2010 was
$239.00 (Doc. No. 28-1);

•

A report from the National Law Journal and ALM Legal Intelligence titled The
Survey of Law Office Economics, 2011 Edition indicates that the value of
services rendered by attorneys since 1985 has increased at a rate faster
than inflation (Doc. No. 28-2); and

•

The CPI and a table from the Bureau of Labor and Statistics indicate an
increase in the value of legal and clerical services over time (Doc. Nos. 283 and 4).

The Commissioner has not challenged the adequacy of this additional evidence. The

4

Plaintiff seeks a cost-of-living increase based on inflation between March 1996
and only 2011 because most of his counsel’s services were rendered in 2011.

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These CPI values are not seasonally adjusted.
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Court concludes that Plaintiff’s evidence adequately supports a cost-of-living increase in
Plaintiff’s EAJA fee rate.6
The Commissioner also contends that Plaintiff’s calculation should be based on the
“Midwest” CPI rather than the “U.S. City Average” CPI. The Court agrees that the
“Midwest” CPI appears to be the more appropriate measure of the increase in the cost of
living for purposes of EAJA. There is a split among courts regarding which CPI is most
appropriate for determining a cost of living increase under EAJA. See Jawad v. Barnhart,
370 F. Supp. 2d 1077, 1083-85 (S.D. Cal. 2005) (collecting cases). Although courts in this
District have accepted cost-of-living increases based on the “U.S. City Average” CPI, they
often did so because the final EAJA award remained reasonable and appropriate under the
facts of those cases. The “Midwest” CPI nevertheless appears more appropriate, as in
this Circuit prevailing parties must show that their requested rates are in line with those
prevailing in the community, not the nation. But see id. at 1085 (holding that “the national
index is the more appropriate source to determine the cost-of-living adjustment under the
EAJA” because “the national CPI-U is not only consistent with the established trend in the
Ninth Circuit, it is consistent with the plain language of 28 U.S.C. § 2412(d)(2)(A) itself”).
The calculation for a cost-of-living increase between March 1996 and 2011 based on the

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In Zellner, Senior District Judge Spiegel expressed that “in the future what we will
require to comport with Bryant[] will be affidavits from other members of the local
bar in which they testify as to their years of experience, skill, and reputation, and
thus their consequent hourly rate,” and “[m]ost preferable would be the results of
a fee survey conducted by a state or local bar association committee comprised
of lawyers in the social security area of practice.” Zellner, 2012 WL 273937, at
*3. This Court, however, is not aware of any legal authority from the Sixth Circuit
that requires such a specific evidence showing to justify a cost-of-living increase
in the EAJA fee rate.
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“Midwest” CPI for “all items” for “all urban consumers” is 214.743 divided by 151.7 and
then multiplied by $125.00, which equals $176.95.7
Plaintiff’s evidence permits the reasonable inference that the value of legal services
in this community since March 1996 has increased because of inflation; and a comparison
to the rates other attorney’s in this community charge for their services supports the
conclusion that a rate of $176.95 per hour in this case is reasonable and appropriate.
C.

Calculation of Plaintiff’s EAJA Award

Plaintiff’s counsel expended a total of 27.5 hours on services rendered through
Plaintiff’s initial EAJA application. Plaintiff will be compensation for those hours at a rate of
$176.95 per hour, for a total of $4,866.13.
Plaintiff also seeks compensation for hours of services rendered by his counsel
related to his reply brief and supplemental application. The value of services rendered in
defending the propriety of an EAJA award may be compensable under EAJA. See
Spurlock v. Sullivan, 790 F. Supp. 979, 982 (N.D. Cal. 1992) (citing I.N.S. v. Jean, 496
U.S. 154 (1990)) (“[A]n award of attorney fees under the EAJA should encompass not only
the fees incurred in the litigation on the merits, but also the fees incurred by the prevailing
party in protecting that fee award in subsequent litigation by the government over the
propriety or amount of the EAJA fee award.”) The Commissioner has not challenged

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The Commissioner proposes that the “Midwest” CPI for the first half of 2011
(213.47) should be used in the calculation instead of the annual average
“Midwest” CPI, and that the resulting rate would be $178.00. The
Commissioner’s mathematical calculation is incorrect, as the resulting rate under
those circumstances is $175.90. Moreover, as Plaintiff’s counsel’s services were
rendered throughout 2011, the Court finds Plaintiff’s reliance on the annual
average CPI (214.743) justified.
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Plaintiff’s supplemental requests for fees. Accordingly, Plaintiff will be awarded attorney’s
fees for his counsel’s work on the reply brief and supplemental application, as well.
Plaintiff states that his counsel expended 9.3 hours on the reply brief and 5.6 hours
on the supplemental application; and he seeks compensation for that time at the rate of
$180.59 per hour based on the “U.S. City Average” CPI. (Pl.’s Reply 12; Pl.’s Supp. 14.)
As the “Midwest” CPI appears to be the more appropriate measure of a cost-of-living
increase under EAJA, Plaintiff will be compensated for those hours at a rate of $176.95 per
hour, for a total of $2,636.56.
Plaintiff also is awarded $68.00 for services rendered by Ms. Shriver, and $40.00 in
costs. Accordingly, and as outlines in the table below, Plaintiff’s total award under EAJA is
$7,610.69. This award is reasonable and appropriate under the circumstances of this
case.
Hours
Requested

Hours
Approved

Rate/Value
Requested

Rate/Value
Approved

Award
Approved

Roose
(initial app.)

4.9

4.9

$180.59

$176.95

$867.06

Roose
(reply brief)

9.3

9.3

$180.59

$176.95

$1,645.64

Roose
(supp. app.)

5.6

5.6

$180.59

$176.95

$990.92

Schnaufer

22.6

22.6

$180.59

$176.95

$3,999.07

Shriver

5.1

1.7

$40.00

$40.00

$68.00

$40.00

$40.00

$40.00

Costs
Totals
D.

47.5

44.1

$7,610.69

To Whom the EAJA Award Should Be Made Payable

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Plaintiff indicated in his initial EAJA application that he assigned his right to be paid
to his attorney pursuant to a fee agreement. The Commissioner responded that, pursuant
to Astrue v. Ratliff, 130 S. Ct. 2521, 177 L. Ed. 2d 91 (2010), any EAJA award should be
made payable to Plaintiff and not his attorney so that any pre-existing debt owed by Plaintiff
to the government may be subject to administrative off-set. The Commissioner continued
that, “[i]f this Court awards fees under . . . EAJA, the government will evaluate the propriety
of directing payment to the attorney pursuant to an assignment.” (Def.’s Response 7.)
Plaintiff concurred with the Commissioner in his reply. Accordingly, counsel first shall
determine whether Plaintiff owes a pre-existing debt subject to offset; if there is no preexisting debt or the debt is less than the amount of the EAJA fee award, the balance of the
EAJA fee award shall be made payable to Plaintiff’s counsel per the assignment in the
record.
VI.

CONCLUSION

For the foregoing reasons, Plaintiff is awarded a total of $7,610.69 to fully satisfy all
reasonable attorney’s fees, expenses, and costs incurred under EAJA.
s/ Nancy A. Vecchiarelli
U.S. Magistrate Judge
Date: July 16, 2012

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