Escobar v. Commissioner of Social Security

Filing 30

Memorandum Opinion and Order granting in part and denying in part 23 Plaintiff's Motion for attorney fees Under the Equal Access to Justice Act. Plaintiff shall be awarded $4,411.59 to fully satisfy all reasonable attorney's fees, expenses, and costs incurred under EAJA. Magistrate Judge Nancy A. Vecchiarelli on 7/1/2015. (G,W)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JESSICA M. ESCOBAR,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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CASE NO. 1:13-CV-2508

MAGISTRATE JUDGE
VECCHIARELLI

MEMORANDUM OPINION AND
ORDER
(Doc. No. 23)

This case is before the Magistrate Judge by the consent of the parties. (Doc.
No. 13.) On March 4, 2015, Plaintiff, Jessica M. Escobar (“Plaintiff”), through her
attorney, Kirk B. Roose, filed a motion for attorney fees under the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412(d), in the amount of $7,836.35. (Doc. Nos. 23,
23-13.) Defendant, Carolyn W. Colvin, the Commissioner of Social Security
(“Commissioner”), opposes Plaintiff’s motion. (Doc. No. 26.) For the reasons set forth
below, Plaintiff’s motion for EAJA fees is GRANTED in part and DENIED in part, i.e.,
Plaintiff shall be awarded $4,411.59 to fully satisfy all reasonable attorney’s fees,
expenses, and costs incurred under EAJA.
I. BACKGROUND
On November 12, 2013, Plaintiff filed her complaint to challenge the
Commissioner’s final decision denying her applications for Social Security disability
benefits. (Doc. No. 1.) Plaintiff asserted two assignments of error: (1) the
administrative law judge (“ALJ”) erred in evaluating the opinions of state agency
reviewing psychologists Karen Steiger, Ph.D., and Vicki Warren, Ph.D.; (2) the ALJ

erred in evaluating the opinion of treating psychiatrist Dominic Gomes, M.D. In
December 2014, the Court affirmed the ALJ’s decision on Plaintiff’s second assignment
of error, but reversed and remanded the case on the basis of Plaintiff’s first assignment
of error. (Doc. No. 21 at 13-15.) Specifically, the Court concluded that, in determining
Plaintiff’s residual functional capacity (“RFC”), the ALJ erred when he failed to explain
the omission of limitations on Plaintiff’s ability to interact with others assigned by Drs.
Steiger and Warren, despite having given their opinions great weight:
Here, the ALJ’s RFC determination directly conflicts with the
opinions of Drs. Steiger and Warren, and the ALJ fails to
explain, or even address, these inconsistencies. Dr. Steiger
opined that Plaintiff could have “brief superficial contact with
others.” (Tr. 82.) In his RFC determination, the ALJ limited
Plaintiff to work with “no more than superficial interpersonal
interactions with others.” (Tr. 150.) The ALJ does not
explain why he omitted Dr. Steiger’s limitation of Plaintiff to
brief superficial interactions. As Plaintiff explains in her
Brief, the term “superficial” refers to the nature of social
interactions but does not address the duration of those
interactions. At Plaintiff’s hearing, the VE testified that he
interpreted the term “superficial” to mean “[i]nteractions not
requiring any negotiation, not being–not worrying about the,
you know, the responsibility for someone else’s safety, not
having to negotiate or explain extensive changes.” (Tr. 53.)
When questioned by Plaintiff’s attorney, the VE agreed that
“superficial” means “no negotiation, arbitration, or
confrontation, no responsibility for the health and safety of
others, and no supervision of others. . . .” (Tr. 54.) Thus,
the VE’s testimony, on which the ALJ relied, clearly indicates
that the term “superficial” refers to the nature, not duration,
or social interaction. Dr. Steiger found that Plaintiff was
limited not only in the quality of social interaction in which
she may engage, but in quantity as well by limiting Plaintiff to
“brief” superficial contact with others. Because the ALJ’s
RFC does not adequately account for this restriction and the
ALJ did not explain his reasons for rejecting this portion of
Dr. Steiger’s opinion, the ALJ erred.
Furthermore, the ALJ’s RFC does not account for Dr.
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Warren’s restriction of Plaintiff to work in a “calm setting”
where “expectations are clear and consistent.” (Tr. 118.) At
Plaintiff’s hearing, the VE testified that a person who would
need to be in a “calm” work setting would be unable to work,
as no work setting is always calm. (Tr. 56.) The VE further
testified that he could not provide any jobs that an individual
who required clear and consistent expectations could
perform, because “consistency and clarity of expectations
are subjective,” therefore “there’s no way a job is going to be
able to meet that for every individual.[”] (Tr. 57.) Thus, Dr.
Warren opined that Plaintiff had two limitations that,
according to the VE, would preclude her from performing
work existing in significant numbers in the national economy.
In determining Plaintiff’s RFC, however, the ALJ does not
account for those limitations or explain his reasons for
rejecting that portion of Dr. Warren’s opinion which found
such restrictions. Accordingly, the ALJ erred in his
evaluation of Dr. Warren’s opinion. For the foregoing
reasons, Plaintiff’s first assignment of error presents a basis
for remand of her case.
(Id. at 14-15.)
On March 9, 2015, Plaintiff filed her application for attorney fees pursuant to the
EAJA. (Doc. No. 23.) She requests $7,836.35 in attorney fees, representing a total of
43.6 hours of services rendered. (Doc. No. 23-13.) This number consists of: (1) 22.6
hours expended by Attorney Kirk B. Roose on the merits of the appeal; (2) 17.4 hours
expended by Attorney Melissa L. Kunder on the merits of the appeal; (3) 1.8 hours
expended by Attorney Roose on the EAJA application; and (4) 1.8 ho urs expended by
counsels’ “appellate assistant.” (Doc. No. 23-1.) Plaintiff requests an hourly rate of
$185.75 for her attorneys, and $40.00 for their assistant. (Doc. No. 23-13.) Plaintiff
notes that, “in the exercise of billing judgment,” her attorneys each voluntarily deducted
5 hours from the total number of hours they actually expended on the merits in this
matter. (Id.)
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Thereafter, the Commissioner filed her response in opposition to Plaintiff’s
motion. (Doc. No. 25.) The Commissioner argues that an EAJA award is not warranted
because her position was substantially justified. She further requests that if the Court
finds that her position was not substantially justified, Plaintiff’s requested fees under the
EAJA should be reduced to $$4,683.75, because Plaintif f seeks compensation for an
excessive number of hours.1 (Id.) Additionally, the Commissioner contends that any
EAJA award should be paid to Plaintiff and not Plaintiff’s counsel. (Id.)
In April 2015, Plaintiff filed a reply in support of her fees application. (Doc. No.
29.) In addition to addressing the Commissioner’s arguments, Plaintiff requests a
supplemental award of attorney fees of $371.50, representing two hours expended by
Attorney Roose in researching and preparing the reply. Accordingly, Plaintiff requests a
total of $8,207.85 in attorney fees in this case.
II. LAW AND ANALYSIS
The EAJA permits the Court to award fees and other expenses to a prevailing
party in a civil action against the United States unless the United States’ position w as
substantially justified or other special circumstances exist. See 28 U.S.C.
§ 2412(d)(1)(A). A plaintiff is the “prevailing party” when he or she succeeds on any
significant issue in the litigation resulting in the benefit of a remand. Shalala v.
Schaefer, 509 U.S. 292, 302 (1993); Olive v. Comm’r of Soc. Sec., 534 F. Supp. 2d
756, 758 (N.D. Ohio 2008) (Katz, J.). Here, there is no dispute that Plaintiff is the

1

Although noting that this Court has awarded attorney fees using a lower rate in
other cases, the Commissioner does not assert more than a perfunctory challenge
Plaintiff’s requested hourly rates.
4

“prevailing party,” as the Court entered judgment in Plaintiff’s favor and remanded the
case. The Commissioner, however, contends that: (1) Plaintiff is not entitled to attorney
fees in this case because the Commissioner’s position was substantially justified; and
(2) in the alternative, if Plaintiff is entitled to fees, her fee request must be reduced
because her counsel expended an unreasonable number of hours on the case.
A.

Whether the Commissioner’s Position was Substantially Justified
Substantially justified means “justified to a degree that could satisfy a reasonable

person.” Noble v. Barnhart, 230 F. App’x 517, 519 (6th Cir. 2007) (citing Pierce v.
Underwood, 487 U.S. 552, 565 (1988)). The Commissioner bears the burden of
establishing that her position was substantially justified. See Scarborough v. Principi,
541 U.S. 401, 414 (2004); E.W. Grobbel Sons, Inc. v. Nat’l Labor Relations Bd., 176
F.3d 875, 878 (6th Cir.1999). In other words, a “[p]laintiff is presumptively entitled to
attorney fees unless the government can meet its burden of showing that the position of
the United States was substantially justified or that special circumstances make an
award unjust.” Olive, 534 F. Supp. 2d at 758. The government discharges its burden
of proving that its position was substantially justified by “proving that the position had a
reasonable basis both in law and fact.” DeLong v. Comm’r of Soc. Sec., 748 F.3d 723,
725-26 (6th Cir. 2014) (internal citation and quotation marks omitted).
The Commissioner argues that her position was substantially justified because
the error that warranted remand was merely an “articulation error” and the ALJ did not
misapply the sequential disability evaluation. (Doc. No. 25 at 4-5.) The Commissioner
also argues that “the lack of overwhelming evidence of disability in this case further

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supports a finding that the Commissioner’s position was substantially justified.” (Id. at
5.) Plaintiff contends that the error in this was more than a mere articulation error, and
that the purported lack of evidence of disability is not relevant to the issue of attorney
fees in this case. (Doc. No. 29 at 4-5.)
Plaintiff’s entitlement to attorney fees in this case depends upon whether the
error identified by this Court as the basis for remand was merely an error in articulation,
or a substantive error. The Sixth Circuit has determined that “an ALJ’s failure to provide
an adequate explanation for his findings does not establish that a denial of benefits
lacked substantial justification.” Delong, 748 F.3d at 727. In DeLong, the district court
remanded the plaintiff’s case to the agency for further administrative proceedings,
noting that the ALJ had failed to provide good reasons for discounting the opinion of a
treating physician, as required by 20 C.F.R. § 404.1527(c)(2). In remanding the case,
the district court observed that “[t]he record did not strongly establish” the plaintiff’s
entitlement to benefits. 748 F.3d at 726 (emphasis and alternation in original).
Thereafter, the plaintiff filed an application for EAJA fees, which the district court
denied. On plaintiff’s appeal, the Sixth Circuit affirmed the district court’s order,
explaining that the error identified by the district court was in the ALJ’s failure to explain
the weight he assigned to the various medical opinions, rather than in the substantive
issue of whether the ALJ properly considered them:
As the District Court recounted, “[T]he fatal flaw in the ALJ’s
opinion [wa]s not in the weight he found appropriate for the
various medical opinions,” but rather in his failure to explain
his findings adequately. The District Court thus vacated the
ALJ’s decision and remanded DeLong’s case on this
procedural error rather than on substantive grounds.
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* * *
Here, contrary to DeLong’s assertions, the ALJ did not
ignore the opinions of DeLong’s treating physicians. As the
record reflects, even where the ALJ did not reference certain
physicians by name, he included in his analysis operations
they had performed and records they had produced.
Id. at 727 (emphasis in original). The decision in DeLong relied, in part, on the fact that,
while the ALJ may not have adequately explained his decision to assign a particular
weight to a medical opinion at the precise location in his decision where he addressed
the issue of weight, the rest of the ALJ’s opinion adequately supported his finding with
respect to that issue. The Sixth Circuit’s reasoning in DeLong reflects the reality of
administrative decisions in this context: although an ALJ may fail to provide an
adequate explanation of his or her conclusion regarding an issue at a specific point in
the relevant decision, review of the decision as a whole will sometimes support his or
her conclusion on that issue. It is this narrow class of cases that constitute “mere
articulation errors” in which the Commissioner’s position was substantially justified.
Here, the Commissioner contends that the error identified by this Court as the
basis for remand in this case arose out of the level of articulation provided by the ALJ.
(Doc. No.25 at 4-5.) That is not, however, an accurate description of this Court’s
analysis in this case. As this Court discussed in its Order remanding this case, here,
the ALJ “did not adequately account” for the restrictions imposed by Drs. Steiger and
Warren, and did not explain his decision to omit those restrictions from Plaintiff’s RFC,
despite assigning “great weight” their opinions. (Doc. No. 21 at 14.) Indeed, review of
the ALJ decision reveals that the ALJ did not even mention the limitations that are
relevant to Plaintiff’s argument in this matter. In other words, nothing in the ALJ’s
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decision explained the omission of those limitations from Plaintiff’s RFC. The ALJ’s
failure to provide any explanation – at any point in his decision – for the omission of
those limitations not only violated a well-established rule, see Fleischer v. Astrue, 774
F. Supp. 2d 875, 881 (N.D. Ohio 2011) (Lioi, J.), but also resulted in an RFC that was
inconsistent with the ALJ’s stated analysis of the medical evidence in the record – a
substantive error that rendered this issue unreviewable by this Court. See, e.g., Glenn
v. Comm’r of Soc. Sec., 763 F.3d 494, 499 (6th Cir. 2014) (finding that the
Commissioner’s position was not substantially justified where “[s]everal of the ALJ’s
errors in analysis were plainly contrary to law’). Accordingly, this case does not fall into
the small category of cases described in DeLong.
The Commissioner also argues that the lack of “overwhelming” evidence of
disability in this case supports a finding of substantial justification. (Doc. No. 25 at 5-6.)
The Commissioner, however, overstates the importance of this issue in this Court’s
analysis of whether the Commissioner’s position was substantially justified. The Sixth
Circuit has observed that “the strength of [a plaintiff’s] administrative case” is “relevant
to the Commissioner’s justification for the denial of benefits.” Ratliff v. Comm’r of Soc.
Sec., 465 F. App’x 459, 461 (6th Cir. 2012) (emphasis added). The Commissioner
points to no legal authority – and research reveals none – holding that the strength of
the evidence of disability can be the sole basis for supporting a finding of substantial
justification. This is particularly true where, as in this case, the district court identifies a
substantive error that compels remand. Indeed, requiring such analysis by a district
court in this context invades the province of the Commissioner because it requires the

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Court to weigh the evidence, and contradicts the deferential substantial evidence level
of review applied to the Commissioner’s decisions. Accordingly, the Commissioner’s
argument lacks merit. In this case, the Commissioner’s position was not substantially
justified and, thus, Plaintiff is entitled to attorney fees.
B.

Whether Plaintiff’s Counsel Expended an Unreasonable Number of Hours
on the Case
The Commissioner argues that Plaintiff’s counsel expended an unreasonable

number of hours on the merits of this case. The Court agrees. Review of the billing
records of Plaintiff’s counsel reveal that, between March 6, 2014 and March 22, 2014,
Attorney Kunder spent 27.3 hours preparing a draft of the brief in this case. (Doc. No.
23-1.) Plaintiff, “in the exercise of billing judgment,” has deducted 9.9 hours of the time
expended by Kunder from her EAJA application, and requests compensation for 17.4
hours. (Doc. No. 23-13.) The record reveals that, between March 23, 2014 and April 2,
2014, Attorney Roose expended 14.8 more hours on the brief: first, reviewing the draft
of the brief (3.3 hours on March 23 and 27, 2014) and, then, “research[ing ] for brief and
arguments” (3.0 hours on March 30, 2014) and “continu[ing] research, edit[ing] and
fil[ing] brief” (8.5 hours on April 2, 2014). (Doc. No. 23-1.) Again citing “the exercise of
billing judgment,” Plaintiff deducts 5 hours of the time expended by Roose from her
EAJA application, without designating which of Attorney Roose’s activities is the subject
of the voluntary deduction. (Doc. No. 23-13.) Applying that deduction to the hours
expended on the brief, however, results in 9.8 hours expended by Attorney Roose in
this regard, resulting in a total of 27.2 attorney hours spent on briefing for which Plaintiff
requests compensation in her EAJA application.
9

In sum, the billing records reflect that Plaintiff’s attorneys expended multiple
hours performing the same work, or that Attorney Roose spent substantial time editing
or rewriting Attorney Kunder’s work. Plaintiff offers no explanation for the number of
hours expended by two different attorneys on what was apparently the same work.
Absent some other explanation – such as an affidavit describing a reasonable division
of labor between the two attorneys – the hours reflected in the billing records for the
time spent on the brief are duplicative.2 As the Sixth Circuit has observed in a different
fee context, “Plaintiffs are not entitled to have any number of well-qualified attorneys
reimbursed for their efforts, when fewer attorneys could have accomplished the job.”
Ky. Res. Concepts, Inc. v. Louisville 117 F. App’x 415, 419 (6th Cir. 2004) (addressing
a fee request under 42 U.S.C. § 1988). Further, a prevailing party is not entitled to
recover for “hours that are excessive, redundant, or otherwise unnecessary.” Hensley
v. Eckerhart, 461 U.S. 424, 434 (1983) (same).
It is impossible to determine what benefit, if any, resulted from Attorney Kunder’s
work; the total hours expended strongly suggests duplication. Accordingly, the Court
finds that only one attorney’s time is compensable to adjust for duplication, and it is
reasonable to allow Plaintiff the five hours deducted by Attorney Roose, and deny
compensation for all of the hours expended by Attorney Kunder on the brief.

2

Plaintiff’s attorneys report their time using the block billing method, which
makes it impossible for this Court to ascertain whether Attorney Roose and Attorney
Kunder actually performed different types of work or distinct tasks with respect to the
brief. While there is no principle that prohibits block billing, counsel who engage in this
practice do so at their own peril when the amounts claimed appear to be excessive.
See, e.g., Farfaras v. Citizens Bank and Trust of Chicago, 433 F.3d 558, 569 (7th Cir.
2006).
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Accordingly, this Court deducts 12.4 of the hours requested by Plaintiff for the
hours expended by her attorneys on the brief in this matter. This number reflects
the restoration of the 5 hours voluntarily deducted by Attorney Roose and the
deduction of the 17.4 hours expended by Attorney Kunder on the brief in this
case, for a net deduction of 12.4 hours. 3
The Commissioner also argues that this Court should reduce the number of
hours requested for work performed by Attorney Roose on the reply brief in this matter.
The billing records reflect that Attorney Roose expended 10.7 hours “research[ing],
prepar[ing], and fil[ing] reply brief.” (Doc. No. 23-1 entry at Nay 30, 2014.) The
Commissioner argues that Plaintiff’s reply brief in support of the merits of her appeal
“contained only eight pages of substance . . . and mostly repeats the assertions set
forth” in Plaintiff’s opening brief. (Doc. No. 25 at 10.) Plaintiff does not respond to this
specific argument in this case. The Commissioner’s argument has merit. It was not
reasonable for Attorney Roose, an experienced practitioner in this area of law, to

3

The Commissioner argues in a perfunctory manner that this Court should
reduce the total amount of compensable hours expended on the merits in this case to
25 hours, because only one of Plaintiff’s arguments was successful in this Court, and
because the two arguments in this case addressed the ALJ’s evaluation of opinion
evidence, which is a not a novel or complex issue. Plaintiff responds that the amount of
hours expended by counsel in this case is within the “range of 30-40 hours for attorney
work on the merits of a ‘routine’ Social Security case.” (Doc. No. 29 at 6.) Plaintiff,
however, cites to no binding authority – and this Court has never held – that the range
of hours identified by Plaintiff is per se reasonable for a “routine” case. Further, the
Court’s deduction of 12.5 hours from the hours expended on the merits of this case
sufficiently addresses the issue of the excessive number of hours expended on the
merits brief in this case.
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expend nearly 11 hours drafting an eight-page reply brief.3 Accordingly, the Court
deducts an additional 3 hours from the total number of hours expended on the
merits in this case, for a total deduction of 15.4 hours on the basis that they were
not reasonably expended.
The Commissioner also takes issue with the number of hours – 1.8, at an hourly
rate of $40.00 – expended by counsels’ appellate assistant, Diane J. Shriver, in this
matter. Specifically, the Commissioner argues that this Court should deduct 0.8 hours
from that total on the basis that Plaintiff requests compensation for tasks performed by
Ms. Shriver that were “purely clerical,” and, thus, non-compensable. (Doc. No. 25 at
10-11.) This Court has determined that, “purely clerical or secretarial tasks,” such as
dictation and typing, are “non-legal work” and should not be billed in an EAJA
application, regardless of who performed the work. Rodriguez v. Astrue, No. 3:11-CV398, 2012 WL 2905928, *3 (N.D. Ohio July 16, 2012). Some clerical tasks, however,
such as preparing and filing the complaint, are “considered sufficiently ‘legal work’ to
permit compensation,” albeit at a lesser rate. Id.
The record reveals that Ms. Shriver performed both legal and non-legal work in
this matter. Her hours are reduced as follows:
•

On October 2, 2013, she expended 0.3 hours calling the client; completing the in
forma pauperis form and mailing it to the client for the client’s signature. These

3

In the reply in support of the EAJA application, Plaintiff argues that her
counsel’s level of experience is not relevant in determining whether a fee request is
reasonable. (Doc. No. 29 at 7.) This argument lacks merit, particularly in light of the
fact that Plaintiff provides evidence regarding her counsels’ experience in the area of
Social Security as a basis for justifying their hourly rates. (See, e.g., doc. no. 23-4.)
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tasks are all sufficiently legal in nature to be compensable.
•

On October 10, 2013, Ms. Shriver expended 0.1 hours receiving the signed in
forma pauperis form in the mail. This task is non-legal and, thus, this Court shall
deduct 0.1 hours from the total expended by Ms. Shriver in this case.

•

On November 12, 2013, Ms. Shriver expended one hour preparing and filing the
complaint and associated paperwork; sending copies to the client; faxing case
information to the agency; and preparing and filing the certification confirming
notification of case information. This Court shall deduct 0.2 hours from the total
number of hours expended by Ms. Shriver in this case, reflecting a deduction for
the non-legal work of sending copies to Plaintiff and faxing case information to
the agency.

•

On December 17, 2013, Ms. Shriver expended 0.2 hours conferring with
Attorney Roose regarding the fact that Plaintiff would consent to magistrate
judge jurisdiction, and then preparing and mailing the consent form to the
Commissioner’s attorney. This Court shall deduct 0.1 hours from the total
number of hours expended by Ms. Shriver in this case, reflecting a deduction for
the non-legal work of mailing the consent form.

•

On January 16, 2014, Ms. Shriver expended 0.2 hours downloading the
transcript in this case. This is a purely clerical task, and the Court shall deduct
the entire 0.2 hours from the total number of hours expended by Ms. Shriver in
this case.
The sum of the deductions listed above is 0.6, and, thus, this Court shall

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deduct 0.6 hours from the total hours requested for work performed by Ms.
Shriver in this matter.4
Plaintiff requests compensation for 40 hours expended by her attorneys on the
merits and the preparation of her EAJA application (but not the reply). As discussed
above, with respect to fees incurred in the merits portion of this case, the Court deducts
15.4 hours from the total number of hours expended by attorneys on the merits in this
matter. Plaintiff’s EAJA application requests compensation for 1.8 hours of work
performed in preparing the application. (Doc. No. 23-1.) Plaintiff’s entitlement to fees
incurred in obtaining fees is discussed in Section II(C), infra. Accordingly, for the
purpose of determining the amount of fees awarded on the merits of the case, the
Court deducts an additional 1.8 hours from the total of requested hours on the merits
portion of the work, resulting in 22.8 hours of work performed by Plaintiff’s counsel
on the merits in this case. Further, the Court deducts 0.6 hours from the total hours
expended by Ms. Shriver, for a total of 1.2 hours of work performed by counsels’
appellate assistant.
4

The Commissioner also argues that this Court should reduce the number of
hours expended by Ms. Shriver because she is not a licensed attorney, and, thus, she
should not be compensated for time spent performing attorney tasks, such as preparing
the complaint and “conferring” regarding the consent in this case. This argument lacks
merit. This Court has previously permitted EAJA fees for the preparation of a complaint
by an “appellate assistant” because that work was sufficiently “legal work” to permit
compensation. See Rodriguez, 2012 WL 2905928 at *. Further, the billing records
reflect that, although Ms. Shriver prepared the complaint, Attorney Roose reviewed it
before the Complaint was filed. Thus, the records do not demonstrate that Ms. Shriver
was performing the work of an attorney. Further, the entry regarding Ms. Shriver
“conferring” regarding the consent in this case reflects that, on December 17, 2013, she
conferred with Attorney Roose regarding the fact that Plaintiff would consent to
magistrate judge jurisdiction, and then prepared the consent f orm, which is not attorney
work.
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C.

Whether Plaintiff is Entitled to Fees for Work Performed to Obtain Fees on
the Merits
Finally, Plaintiff requests compensation for 1.8 hours of work performed by

Attorney Roose in preparing the EAJA application. (Doc. No. 24-1.) In her reply brief,
Plaintiff requests an additional $371.50 – representing two hours of work performed by
Attorney Roose – for the preparation of the reply in support of the EAJA fees
application in this case (doc. No. 29 at 8), for a total request of 3.8 hours – or
$705.50 – for work expended in obtaining fees in this case.
There is no dispute that “time spent preparing, presenting and trying attorney fee
applications is compensable.” Coulter v. State of Tennessee, 805 F.2d 146, 151 (6th
Cir. 1986). In Coulter, however, the Sixth Circuit recognized that “some limitations must
be placed on the size of these fees. Otherwise the prospect of large fees later on may
discourage early settlement of cases by rewarding protracted litigation of both the civil
rights case and the attorney fee case.” Id. Accordingly, under Coulter, fees awarded
for litigating initial fee requests are generally subject to the following limits:
In the absence of unusual circumstances, the hours allowed
for preparing and litigating the attorney fee case should not
exceed 3% of the hours in the main case when the issue is
submitted on the papers without a trial and should not
exceed 5% of the hours in the main case when a trial is
necessary. Such guidelines are necessary to insure that the
compensation from the attorney fee case will not be out of
proportion to the main case and encourage protracted
litigation.
Id.; see also id. at 148, 153 (noting that Congress had adopted 131 fee-shifting
statutes, including the EAJA, in order to “provide economic incentive for the legal
profession to try meritorious cases defining and enforcing statute policies and
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constitutional rights in a variety of fields of legal practice . . . . Congress did not intend
that lawyers . . . receive excess compensation or incentives beyond the amount
necessary to cause competent legal work to be performed in these fields.”). Here, this
Court determined the merits of Plaintiff’s case without conducting a trial or otherwise
requiring work beyond the preparation of briefs. Accordingly, the 3% cap of Coulter
applies to Plaintiff’s request for fees incurred in obtaining fees, and Plaintiff shall be
awarded an amount equal to 3% of the amount of fees awarded for work expended on
the merits of this case for work performed on her fee application.
D.

Summary of the EAJA Award
In sum, Plaintiff’s request for fees is DENIED in part and GRANTED in part to

the following extent:
•

Plaintiff shall receive attorney fees for 22.8 hours expended by counsel on the
merits of the case (the result of 40 (total hours requested in the EAJA
application) minus 15.4 (hours not reasonably expended, including all of the
hours expended by Attorney Kunder, but restoring the 5 hours voluntarily
deducted from the hours expended by Attorney Roose) minus 1.8 (hours
expended on the EAJA application) at an hourly rate of $185.75, totaling
$4,235.10;

•

Plaintiff shall receive attorney fees for 1.2 hours expended by Ms. Shriver, at an
hourly rate of $40.00, totaling $48.00, resulting in a total of $4,283.10 for work
expended on the merits of the case; and

•

Plaintiff shall receive attorney fees for three percent of the total award for work
performed on the merits, or $128.49, for fees incurred in obtaining fees in this
16

case, for a total fee award of $4,411.59.
E.

To Whom the EAJA Award Shall Be Paid
The materials in support of Plaintiff’s EAJA application reflect that Plaintiff has

assigned any award of EAJA fees to counsel. (Doc. No. 23-14.) However, 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 her attorneys so that any pre-existing debt owed by
Plaintiff to the government may be subject to administrative off-set. Plaintiff concurs.
(Doc. No. 29 at 8.) Accordingly, counsel first shall determine whether Plaintiff owes a
pre-existing debt subject to offset; if there is no pre-existing 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.
III. CONCLUSION
For the foregoing reasons, Plaintiff is awarded a total of $4,411.59 to fully satisfy
all reasonable attorney fees, expenses, and costs incurred under the EAJA in this case.
IT IS SO ORDERED.
s/ Nancy A. Vecchiarelli
U.S. Magistrate Judge
Date: July 1, 2015

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