Thompson v. Commissioner of Social Security

Filing 28

Memorandum Opinion and Order: The Court GRANTS in part and DENIES in part Plaintiff's Application for Attorney Fees Under the EAJA (Doc. 24 ) and awards Plaintiff EAJA fees in the amount of $7,822.08. Magistrate Judge Kathleen B. Burke on 2/16/2017. (D,I)

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

BRIAN S. THOMPSON,
Plaintiff,

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 1:15-cv-02230

MAGISTRATE JUDGE
KATHLEEN B. BURKE

MEMORANDUM OPINION & ORDER

Having prevailed in obtaining a reversal and remand of the Commissioner’s decision
denying his applications for Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”), Plaintiff Brian S. Thompson (“Plaintiff”), on behalf of his counsel Kirk B.
Roose and Melissa Kunder, 1 now seeks an award of attorney fees in the amount of $10,506.00
pursuant to the Equal Access to Justice Act (“EAJA”). Doc. 24, pp. 3-4. Plaintiff seeks an
award of $183.88 per hour for a total of 56.7 attorney hours and $40.00 per hour for a total of 2.0
paralegal hours. Doc. 24, pp. 3-4.
As explained below, the Court concludes an award of fees pursuant to the EAJA is
warranted in this case at a rate of $182.25 per hour for attorney time and $40.00 for paralegal
time but at a reduced number of hours than has been requested by Plaintiff. Therefore, the Court
GRANTS in part and DENIES in part Plaintiff’s Application for Attorney Fees Under the EAJA
(Doc. 24) and awards Plaintiff EAJA fees in the amount of $7,822.08.

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Paralegal fees are requested for work performed by Diane J. Shriver. Doc. 24.

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I. The EAJA Standard
The EAJA provides,
Except as otherwise specifically provided by statute, a court shall award to a
prevailing party other than the United States fees and other expenses ... incurred
by that party in any civil action ..., including proceedings for judicial review of
agency action, brought by or against the United States ... unless the court finds
that the position of the United States was substantially justified or that special
circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A); see Pierce v. Underwood, 487 U.S. 552, 556 (1988). Thus, a
prevailing party in an action against the United States can recover fees and expenses, unless the
United States’ position was “substantially justified” or “special circumstances make an award
unjust.” 28 U.S.C. § 2412(d)(1)(A); see Pierce, 487 U.S. at 556.
Here, it is undisputed that Plaintiff is the prevailing party. See Shalala v. Schaefer, 509
U.S. 292, 301 (1993) (holding that a plaintiff is the prevailing party in a sentence four remand).
The Commissioner does not dispute the issue of substantial justification and makes no mention
of any special circumstances that would make an award of attorney fees unjust. Doc. 26. Thus,
the issue remaining in dispute is the amount of attorney fees to be awarded.
II. Reasonableness of Attorney Fees
In March 1996, Congress amended the EAJA by increasing the cap for hourly rates for
attorney fees from $75.00 to $125.00 per hour. Pub. L. No. 104-121, 110 Stat. 847 (1996); see
Hawk v. Astrue, No. 4:11-CV-196, 2013 WL 139799, at *1 (N.D. Ohio January 10, 2013). Now,
the EAJA provides that the amount of fees awarded to a prevailing party where the United
States’ position is not substantially justified
shall be based upon prevailing market rates for the kind and quality of the services
furnished … attorney fees shall not be awarded in excess of $125 per hour unless
the court determines that an increase in the cost of living or a special factor, such
as the limited availability of qualified attorneys for the proceedings involved,
justifies a higher fee.
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28 U.S.C. § 2412(d)(2)(A); Bryant v. Comm’r of Soc. Sec., 578 F.3d 443, 449-50 (6th Cir. 2009).
When a plaintiff requests an award in excess of $125 per hour, he “bear[s] the burden of
producing appropriate evidence to support the requested increase.” Id. at 450 (citing Blum v.
Stenson, 465 U.S. 886, 898 (1984)). To justify an upward departure from the statutory cap, the
following applies:
a plaintiff should submit or base her request on the following: (1) the ClevelandAkron CPI; (2) Plaintiff’s attorney’s affidavit stating the attorney’s usual hourly
rate and experience; (3) a time sheet showing hours worked on the case; and (4)
either (a) a practice-specific, local fee survey; or (b) an affidavit or affidavits from
other social security practitioners in the area describing their experience and
hourly rate; or (c) an affidavit or affidavits from other social security practitioners
describing their experience and indicating that the rates sought by plaintiff’s
attorney are in line with prevailing rates in the Cleveland area for services by
lawyers of reasonably comparable skill, experience, and reputation.
Hall v. Comm’r of Soc. Sec., No. 1:12-CV-01764, 2013 WL 6797663, at *3 (N.D. Ohio
December 23, 2013).
Here, Plaintiff has submitted an affidavit from Roose along with affidavits from other
social security practitioners setting forth their experience and/or statements that the rate sought
by Roose is in line with rates sought in the area and time sheets for both Roose and Kunder.
Doc. 24, p. 12; Docs. 24-4 through 24-7. Kunder attests that her usual hourly rate is $250.00 per
hour (Doc. 24-1, p. 4) and her resume is attached to the application (Doc. 24-12) but she has not
submitted her own affidavit setting forth her experience. Plaintiff relies upon the Midwest
regional CPI rather that the Cleveland-Akron CPI to support Plaintiff’s request for an hourly rate
of $183.88. Doc. 24-3.

The Commissioner does not challenge the hourly rate requested.

However, as set forth above, this Court relies upon the Cleveland-Akron CPI. When calculating
the rate using the Cleveland-Akron CPI, the result yields $182.25 per hour. The index for March
1996 was 150.9. The index for March 2016 was 219.970. The increase in the cost of living was
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219.970 ÷ 150.9, or 1.458. Multiplying 1.458 by the 1996 EAJA cap of $125 per hour yields
$182.25. Source: https://data.bls.gov/cgi-bin/dsrv?cu (Bureau of Labor Statistics). Based on the
foregoing, the Court finds that Plaintiff has provided sufficient evidence to warrant an increase in
the hourly rate from $125.00 to $182.25.
III. Reasonableness of Requested Hours
“A prevailing party is not entitled to recover for ‘hours that are excessive, redundant, or
otherwise unnecessary.’” Escobar v. Colvin, 2015 WL 4041845, * 6-7 (N.D. Ohio July 1, 2015)
(relying on Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). “The Sixth Circuit has previously
noted that the number of hours expended in pursuit of most social security appeals is in the range
of ‘twenty to thirty hours,’ . . . with forty hours topping out the high end of what has been
described as an average range.” Crim v. Comm’r of Soc. Sec., 2013 WL 1063476, * 4 (S.D. Ohio
Mar. 14, 2013), report and recommendation adopted, 2013 WL 3367337 (S.D. Ohio July 5,
2013) (citing Glass v. Sec’y of HHS, 822 F.2d 19, 20 (6th Cir. 1987) and Hayes v. Sec’y of HHS,
923 F.2d 418, 420 (6th Cir. 1990)). While each case must be looked at on an individual basis,
the average range of hours generally spent on a social security appeal provides a “frame of
reference” for assessing the reasonableness of an attorney fee request. Id. at * 5.
Recognizing that there is no rule requiring that an EAJA fee award fall within the average
number of hours typically expended in a social security appeal, where, as is the case here, the
number of hours for which compensation under the EAJA is sought far exceeds the average
range more careful scrutiny should not be unexpected. Crim, 2013 WL 1063476, * 5.
In support of the application for fees, Plaintiff contends that his case was not the typical
or average case, citing to the fact that the administrative transcript totaling 1,950 pages was
much longer than an average transcript, the case went to court twice so a prior court order had to

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be considered, and counsel spent more time at the start anticipating the Commissioner’s
argument, which Plaintiff contends was worthwhile because Plaintiff’s briefing resulted in a
voluntary remand. Doc. 27, p. 8.
The Court agrees that the transcript in this case (Doc. 12) is longer than a typical social
security appeal transcript. However, the fact that there was an earlier court proceeding relating
to Plaintiff’s claim does not make Plaintiff’s case atypical and any EAJA fees to be awarded in
this case relate only to the proceedings in this case, not to an earlier court proceeding.
Plaintiff contends that four errors were raised before the Appeals Council and when
preparing the brief on appeal Kunder identified an additional five arguments for appeal. Doc. 24,
p. 5. Roose then spent time narrowing those nine possible issues down to the three arguments
presented in Plaintiff’s brief. Id. The issues raised by Plaintiff in his appeal are not uncommon
in social security appeals, i.e., arguments regarding evaluation of medical opinion evidence and
accounting for limitations such as strict production quotas and difficulties in concentration,
persistence or pace. Doc. 16. Furthermore, the three arguments are similar to those raised
before the Appeals Council. Compare Doc. 12, Tr. 866-870 with Doc. 16. Also, a review of the
billing records reflects that Roose and Kunder have requested EAJA fees for work that was
duplicative, not reasonable and/or was excessive. For example, on February 4, 2016, Kunder
reviewed testimony and opinion evidence. Doc. 24, pp. 7-8. On March 2, 2016, Roose
performed the same or very similar work, i.e., “review details of VE testimony and medical
opinions . . .” Doc. 24, p. 6. On March 1, 2016, Roose spent time reviewing and editing
Kunder’s work. Doc. 24, p.6. Similarly, on March 3, 2016, Roose billed for time narrowing and
rewriting arguments that had already been reviewed and researched by both Roose and Kunder.
Doc. 24, p. 7.

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Based on the foregoing, the Court finds that the transcript in this case was longer than
average and some of the time billed by Roose consisted of his own research and drafting. See
Doc. 24, pp. 6-7 (portions of March 2, 2016, and March 3, 2016, time entries). However, the
Court also finds that the case was not unique or significantly complex and there were instances
of overlap and/or duplication of work performed by the two attorneys.
Accordingly, upon consideration of the foregoing, the Court finds that a reduction of 15.5
hours, i.e., 50%, from Kunder’s billing, is warranted to account for work that was duplicative,
unnecessary or excessive. Thus, the Court reduces the total amount of Kunder’s hours from 31
hours to 15.5 hours. Roose’s 25.7 hours 2 are not subject to additional reduction. Accordingly,
on Plaintiff’s initial EAJA fee request, the Court awards $7,508.70 (41.2 hours x $182.25), plus
$273.38 for 1.5 hours associated with preparation of the EAJA reply brief 3 for a total attorney
fee award of $7,782.08.
Plaintiff requests 2.0 hours for work performed by appellate assistant Ms. Shriver at a
rate of $40.00 per hour. Doc. 24, pp. 4, 13.

The Commissioner argues that 1.4 hours of Ms.

Shriver’s time should be deducted because that time correlates to non-compensable clerical
work. Doc. 25, p. 7. Courts within this District have allowed work performed by non-attorneys
where such work is work traditionally performed by attorneys. See Gunther v. Comm’r of Soc.
Sec., 2013 WL 1891346, * 6 (N.D. Ohio May 6, 2013) (allowing recovery of assistant’s time
which included time reviewing emails). However, “purely clerical or secretarial tasks” are not
compensable under the EAJA. Id.; see also see Escobar, 2015 WL 4041845, * 6-7. The Court
finds that the bulk of the work performed by Ms. Shriver included receiving, copying and
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1.8 of the 25.7 hours is associated with preparation of the EAJA application. Doc. 24-1, p. 2.

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The total time expended on the initial EAJA brief was 1.8 hours. Doc. 24-1, p. 2. Plaintiff seeks an award of an
additional 5 hours of attorney time in connection with the filing of his Reply brief. Doc. 27, p. 10. The Court finds
that 5 hours for time spent on the Reply brief is unreasonable.

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mailing documents which is clerical in nature. Also, the Court notes that both Roose and Shriver
billed time for conferring with each other regarding consent. Doc. 24-1, p. 1; Doc. 24-2. Upon
consideration of the foregoing, the Court reduces Ms. Shriver’s time by half and awards 1 hour
of time at $40.00 per hour.
IV. Conclusion
For the foregoing reasons, the Court GRANTS in part and DENIES in part Plaintiff’s
Application for Attorney Fees Under the EAJA (Doc. 24) and awards Plaintiff EAJA fees in the
amount of $7,822.08.

Dated: February 16, 2017
KATHLEEN B. BURKE
U.S. Magistrate Judge

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