Brannon v. Commissioner of Social Security

Filing 30

Memorandum Opinion and Order granting in part and denying in part plaintiff's Motion for attorney fees (Related Doc # 24 ).Plaintiff is awarded a total of $5,298.84 to fully satisfy all reasonable attorney fees, expenses, and costs incurred under the EAJA in this case. Magistrate Judge Nancy A. Vecchiarelli 6/24/16(C,KA)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
TAMMY L. BRANNON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

CASE NO. 1:15-CV-904

MAGISTRATE JUDGE
VECCHIARELLI

MEMORANDUM OPINION AND
ORDER
(Doc. No. 24)

This case is before the Magistrate Judge by the consent of the parties. (Doc. No.
14.) On April 26, 2016, Plaintiff, Tammy L. Brannon (“Plaintiff”), through her attorney,
Howard Olinsky, filed a motion for attorney fees under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d), in the amount of $7,769.32. (Doc. No. 24.) Defendant,
Carolyn W. Colvin, the Acting Commissioner of Social Security (“Commissioner”),
opposes Plaintiff’s motion. (Doc. No. 27.) 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 $5,298.84 to fully satisfy all reasonable attorney’s fees, expenses, and costs
incurred under EAJA.
I. BACKGROUND
On May 7, 2015, Plaintiff filed her complaint to challenge the Commissioner’s
final decision denying her applications for Social Security disability benefits. (Doc. No.
1.) Plaintiff asserted the following assignments of error: (1)(A) the ALJ failed to give
good reasons for discounting the opinion of treating physician Dr. Patel; (1)(B) the ALJ
failed to consider Plaintiff’s non-exertional limitations relating to her fibromyalgia and

depression with anxiety; and (2) the ALJ’s credibility determination was not supported
by substantial evidence and was the product of legal error. (Doc. No. 18.)
In March 2016, the Court reversed and remanded the case principally on the
basis of the Plaintiff’s first assignment of error, although it also required the ALJ to
address on remand several of the issues raised by Plaintiff’s other arguments. With
regard to Plaintiff’s first assignment of error, the Court concluded that, in determining
Plaintiff’s residual functional capacity “(“RFC”), the ALJ erred when he failed to explain
the basis of his rejection or omission of certain limitations assigned by treating physician
Dr. Patel. The Court explained, in relevant part, as follows:
As stated above, Plaintiff does not specifically identify which of Dr. Patel’s
limitations the ALJ improperly rejected. The ALJ’s finding that Plaintiff
could stand/walk for 2 hours in an 8-hour workday is consistent with Dr.
Patel’s opinion. Nevertheless, the ALJ apparently did reject Dr.
Patel’s opinion that Plaintiff could sit for only 3 hours, Dr. Patel’s
lifting restrictions, and the bulk of the manipulative restrictions.6 (Tr.
23, 587- 88.) The ALJ also did not find credible the need for
additional breaks or Dr. Patel’s predicted absenteeism, as those
limitations were not incorporated into the RFC. (Tr. 23.)
Plaintiff argues that Dr. Patel’s alleged lack of knowledge of the
medical-vocational guidelines was an insufficient reason for rejecting the
functional limitations he assessed. (Doc. No. 18 at 23-24.) Standing
alone, this Court agrees that a treating physician’s lack of familiarity with
social security regulations is an insufficient basis for rejecting an opinion. If
such a statement were enough, it could be universally be invoked to
discredit a treating source’s opinion. Furthermore, this is not a case
where a treating source simply opines that a patient is unemployable or
disabled. Rather, Dr. Patel’s opinion contains specific functional
limitations.
Plaintiff avers that the ALJ gave less weight to Dr. Patel’s opinion because
of its inconsistencies when compared to the opinion of Plaintiff’s
gynecologist, Dr. Masri. (Doc. No. 18 at 22.) . . . The Court does not
agree with Plaintiff’s dubious interpretation of the decision. The ALJ
plainly found that both physicians’ opinions were entitled to less weight as
2

they were both inherently inconsistent – not because the two opinions
were inconsistent with one another. . . However, while the ALJ clearly
believed such inherent inconsistencies existed, the decision does not
actually identify those inconsistencies.
The ALJ also pointed out that post-operative treatment notes yielded
normal physical examination results and that Plaintiff had a positive
response to chiropractic treatment. (Tr. 27, citing Exhs. 3F, 4F, 9F, 13F &
20F.) Again, the ALJ makes no meaningful effort to explain how the cited
portions of the record undermine Dr. Patel’s opinion. There is case law
supporting the general proposition that an ALJ’s broad statement rejecting
a treating physician's opinion without giving specific reasons for
rejecting it requires remand. [citations omitted]. By simply pointing to the
medical records that ostensibly support rejection of Dr. Patel’s opinion
without offering a corresponding explanation or analysis, the ALJ
essentially invites a reviewing court to perform its own de novo review of
the record and to flesh out its own rationale as to why Dr. Patel’s opinion
should be rejected. Further, this is not a case in which the ALJ’s
discussion of other medical evidence and opinions in the record
provides a clear basis for rejecting the treating physician’s opinion.
[citation omitted]. While the ALJ’s discussion of other evidence is
significant, it does not lend any insight as to why Dr. Patel’s opinion
was undeserving of significant weight.
Finally, the ALJ found that Dr. Patel’s May 2013 opinion did not provide
sufficient evidentiary support for the exertional and non-exertional
limitations assessed. (Tr. 27.) “Supportability” is one of the factors
specifically set forth in the regulation. 20 C.F.R. § 404.1527(c)(3) . . . It is
true that Dr. Patel’s May 2013 opinion does not delve into any great detail
as what signs or findings support the severe limitations assessed. It simply
sets forth Plaintiff’s diagnoses and indicates her symptoms cause “pain in
various joints.” (Tr. 587-88.) In her reply brief, Plaintiff asserts that
requiring an explanation “elevates form over substance” because the
“copious treatment records” obviate the need for an explanation. (Doc.
No. 21 at 2-3.) The Court does not agree that the supportability factor is
inapplicable because a treating source’s treatment notes have been made
part of the record. Nevertheless, the ALJ’s mere statement that an
opinion lacks evidentiary support, without some attempt at explanation, is
insufficient.
(Doc. No. 22 at 16-19) (emphasis added; footnotes omitted). Accordingly, the Court
found that the ALJ decision “neither sufficiently describes to Plaintiff the basis for the

3

ALJ’s conclusions concerning his treating doctor, nor provides this Court with adequate
material to conduct a meaningful review.” (Id. at 19.) On remand, the Court ordered the
ALJ to “offer an explanation as to the weight ascribed to Dr. Patel’s opinions, including
his diagnosis of fibromyalgia (see below), that comports with social security regulations.”
(Id. at 19-20.)
As remand was required on the basis of Plaintiff’s first assignment of error, the
Court only briefly addressed Plaintiff’s other arguments. With regard to Plaintiff’s
argument that the ALJ failed to account for her fibromyalgia, the Court found that, on
remand, “the ALJ should at least acknowledge that such a diagnosis exists and explain
what, if any, weight is given to such a diagnosis and whether any limitations are
necessary to account for such a condition.” (Id. at 20-21.) As to Plaintiff’s mental
limitations, the Court concluded that “it is less than clear from the [ALJ] decision whether
the ALJ actually incorporated the limitations assessed by [psychological consultative
examiner] Dr. Smith into the RFC, or whether those limitations were rejected due to
Plaintiff’s improvement with mental health treatment.”1 (Id. at 22.)
On April 26, 2016, Plaintiff filed her application for attorney fees pursuant to the
EAJA. (Doc. No. 24.) In her initial application, she requests $7,769.32 in attorney fees,
representing a total of 46.55 hours of services rendered. (Doc. No. 24-1 at 2.) This

1

The Court found Plaintiff’s credibility argument to be moot, noting that “[a]s the
issue of whether Plaintiff suffers from fibromyalgia will be addressed on remand in a
new decision, the ALJ’s decision on that issue may very well impact the credibility of
Plaintiff’s allegations of disabling pain.” (Id. at 23.)
4

number consists of: (1) 37.7 hours expended by her attorneys2 on the merits of the
appeal; (2) 0.75 hours expended by Attorney Olinsky on the EAJA application; and (4)
8.1 hours expended by counsels’ paralegals (which consists of 5.4 hours on the merits of
the appeal and 2.7 hours on the EAJA application) (Doc. Nos. 24-4, 24-5.) Plaintiff
requests an hourly rate of $185.21 for her attorneys, and $80.00 for paralegal
assistance. (Doc. No. 24-1 at 2.)
Thereafter, the Commissioner filed her response in opposition to Plaintiff’s motion.
(Doc. No. 27.) The Commissioner argues an EAJA award is not warranted because her
position was substantially justified. She further requests that, if the Court finds her
position was not substantially justified, Plaintiff’s requested fees under the EAJA should
be reduced to $5,454.25 to reflect an hourly rate of $125 for work performed by
attorneys, rather than the $185.21 hourly rate requested by Plaintiff in her motion.3 (Id.)
In May 2016, 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 $370.42, representing two hours expended by
Attorney Olinsky in researching and preparing the reply. (Id. at 6.) Accordingly, Plaintiff
requests a total of $8,139.74 in attorney fees in this case.
II. LAW AND ANALYSIS
The EAJA permits the Court to award fees and other expenses to a prevailing

2

Several attorneys appear to have worked on Plaintiff’s appeal, including Howard
Olinsky, Paul Eaglin, and Nathaniel Riley. (Doc. No. 24-4.)
3

The Commissioner does not challenge the hourly rate of $80 requested with
respect to the work performed on this matter by counsels’ paralegals. Nor does she
contest the number of hours worked, either by counsel or paralegals.
5

party in a civil action against the United States unless the United States’ position was
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 “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 the
hourly rate requested for work performed by counsel is excessive.
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,
6

725-26 (6th Cir. 2014) (internal citation and quotation marks omitted).
The Commissioner argues her position was substantially justified because the
error that warranted remand was merely an “articulation error” and “the Commissioner’s
overall position was supported in both law and fact.” (Doc. No. 27 at 4-5.) Plaintiff
contends the error in this case was more than a mere articulation error. (Doc. No. 29 at
1-5.) She notes this Court expressly found that “this is not a case in which the ALJ’s
discussion of other medical evidence and opinions in the record provides a clear basis
for rejecting the treating physician’s opinion.” (Doc. No. 29 at 1-5.) In addition, Plaintiff
emphasizes this Court’s determination that the ALJ failed to reconcile the opinion of
consultative examiner Dr. Smith with the RFC. (Id.)
Plaintiff’s entitlement to attorney fees in this case depends upon whether the
errors identified by this Court as the basis for remand were merely errors in articulation,
or substantive errors. 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
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
7

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.
* * *
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. See Escobar v. Colvin,
2015 WL 4041845 at * 4 (N.D. Ohio July 1, 2015) (Vecchiarelli, M.J.); Irizarry v. Colvin,
2015 WL 3755978 at * 4 (N.D. Ohio June 16, 2015) (Vecchiarelli, M.J.).
Here, the Commissioner contends that the primary error identified by this Court as
8

the basis for remand in this case arose out of the level of articulation provided by the
ALJ. (Doc. No. 27 at 1-5.) 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 failed to adequately address not only a number of the physical limitations assessed
by treating physician Dr. Patel, but also the mental limitations assessed by consultative
examiner Dr. Smith. In other words, and with respect to both Dr. Patel and Dr. Smith,
nothing in the ALJ’s 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 her position was substantially justified because
her “underlying position had a reasonable basis both in law and in fact.” (Doc. No. 27 at
6.) The Court disagrees. Here, the Court identified multiple errors in the ALJ’s analysis,
including the failure to properly address two physician opinions and the failure to
acknowledge or address Plaintiff’s fibromyalgia diagnosis. The Commissioner failed to
meet its burden of proving that it was substantially justified in opposing remand of “such
an error-ridden benefit determination.” Glenn, 763 F.3d at 499 (“Here, the law and the
9

facts required remand five times over, giving the government five separate bases for
requiring the ALJ to reconsider Glenn’s claim in accordance with the law. This ‘string of
losses’ indicates that the ALJ’s opposition to remand was not substantially justified.”)
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 Counsels’ Hourly Rate is Reasonable
The 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. 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 $185.21 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 Court’s discretion to award EAJA fees at a rate
10

greater than $125.00 per hour. See Begley v. Sec’y of Health & Human Servs., 966 F.2d
196, 199 (6th Cir.1992). However, 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 her initial Application, Plaintiff provides the following information in support of
her request for a cost-of-living increase: (1) time sheets reflecting the work performed by
her counsel and paralegals with respect to Plaintiff’s appeal in this Court; and (2) a table
from the Bureau of Labor and Statistics indicating an increase in the value of “all items”
over time. (Doc. Nos. 24-2, 24-3, 24-4, 24-5.) Plaintiff then states, in Exhibit A to her
Application (Doc. No. 24-2), 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”)4 for the year in which services were
rendered (i.e., the CPI for 2015) by the CPI for March 1996, and then multiplying by
$125. 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 annual CPI during the year that counsel rendered his or
her services.”). Plaintiff’s calculation of her requested cost-of-living increase is based on
the “Midwest urban” CPI for “all items” for “all urban consumers” in 2015, the year in

4

The Bureau of Labor and Statistics’ CPI calculator may be found online at http://
www.bls.gov/data (last visited June 7, 2016).
11

which Counsel rendered services in this case.5 Accordingly, Plaintiff asserts the EAJA
rate in this case is 224.775 (the CPI for 2015) divided by 151.7 (the CPI for March 1996)
and then multiplied by $125, which equals $185.21.
In her response, the Commissioner argues Plaintiff has not carried her burden of
supporting her request for a cost-of-living increase because merely citing to the CPI and
the rate of inflation is insufficient to merit an increase. (Doc. No. 29.)
In support of her Reply, Plaintiff provides the following additional evidence:
•

A declaration from attorney Shannon Bateson, in which she states that (a)
she has practiced social security disability law since 2007 and has
extensive experience representing claimants before the Social Security
Administration; and (b) “the market rates in the Northern Ohio areas
generally equals or even exceed the rates charged by my law firm, and
further, attorneys are generally not willing to accept representation of
Social Security claimants in federal court at an hourly rate of $125.00 for,
or anything that is much less than the $185.21 per hour which is the current
EAJA hourly rate based on the Consumer Price Index– Midwest Urban.”
(Doc. No. 29-1.)

•

A report from the Ohio State Bar Association titled “The Economics of Law
Practice in Ohio, Desktop Reference for 2010,” which indicates that the
average hourly billing rate of attorneys in the greater Cleveland area in
2010 was $239. (Doc. No. 29-2 at p. 23.)

The Court finds Plaintiff has not submitted adequate evidence to carry her burden
of supporting a cost-of-living increase to $185.21 per hour for work performed by
counsel. While Plaintiff has submitted some evidence of the increase in cost and value
of legal services in general, she has not adequately supported her assertions that the

5

The Commissioner does not challenge Plaintiff’s reliance on the Midwest-CPI in
this case. This Court has found the Midwest-CPI to be the more appropriate measure
of the increase in the cost of living for purposes of EAJA. See Killings v. Colvin, 2013
WL 1455818 at * 5 (N.D. Ohio April 9, 2013) (Vecchiarelli, M.J.); Rodriguez v. Astrue,
2012 WL 2905928 at * 5 (N.D. Ohio July 16, 2012) (Vecchiarelli, M.J.).
12

prevailing hourly rate for attorneys who practice social security law in the Cleveland,
Ohio area is $185.21. In this regard, Plaintiff relies on the affidavit of Ms. Bateson. Ms.
Bateson avers that she works in Columbus, Ohio and has practiced social security
disability law since 2007. She states that:
To the best of my knowledge the market rates in the Northern Ohio
areas generally equals or even exceed the rates charged by my law
firm, and further, attorneys are generally not willing to accept
representation of Social Security claimants in federal court at an hourly
rate of $125.00 for, or anything that is much less than the $185.21 per
hour which is the current EAJA hourly rate based on the Consumer
Price Index– Midwest Urban.
(Doc. No. 29-1 at 2.)
The Court finds Ms. Bateson’s affidavit is insufficient. As an initial matter, the
affidavit does not establish a foundation that Ms. Bateson has knowledge of the
prevailing market rates for social security lawyers in the Cleveland area. She does not
explain the extent of her practice in Northern Ohio and, further, does not provide any
foundation for her alleged knowledge of the market rates for social security practitioners
in this area. Moreover, Ms. Bateson does not definitively aver that the hourly rate for this
field is, in fact, $185.21, stating instead only that social security attorneys are “generally
not willing” to accept “anything that is much less than” $185.21. Ms. Bateson’s affidavit
is conclusory, equivocal, and lacking in foundation. Standing alone, it is simply
insufficient to carry Plaintiff’s burden of proving an increase beyond the $125.00 per hour
rate cap.
Accordingly, the Court concludes Plaintiff’s evidence does not adequately support
a cost-of-living increase in Plaintiff’s EAJA fee rate. The Court will, therefore, apply the
$125 hourly rate to the work performed by Plaintiff’s attorneys.
13

C.

Whether Plaintiff is Entitled to Fees for Work Performed to Obtain Fees on
the Merits
Finally, Plaintiff requests compensation for 0.75 hours of work performed by

Attorney Olinsky and 2.7 hours of work performed by paralegals in preparing the EAJA
application, for a total of $354.91. (Doc. No. 24-4, 24-5.) In her reply brief, Plaintiff
requests an additional $370.42 – representing two hours of work performed by Attorney
Olinsky – for the preparation of the reply in support of the EAJA fees application in this
case (Doc. No. 29), for a total request of 5.45 hours – or $725.33 – 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
14

meritorious cases defining and enforcing statute policies and 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 37.7 hours expended by counsel on the
merits of the case at an hourly rate of $125.00, totaling $ 4,712.50;

•

Plaintiff shall receive attorney fees for 5.4 hours expended by counsels’
paralegals, at an hourly rate of $80.00, totaling $432, resulting in a total of
$5,144.50, 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 $154.34, for fees incurred in obtaining fees in this
case, for a total fee award of $5,298.84.

E.

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

15

assigned any award of EAJA fees to counsel. (Doc. No. 24-6.) 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. 24.) 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 $5,298.84 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: June 24, 2016

16