Stark v. Commissioner of Social Security Administration
Filing
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Memorandum Opinion and Order granting Plaintiff's Motion for attorney fees in the amount of $3,371.61, representing 15.6 hours at $184.75 per hour and 2.65 hours at $184.72 per hour. Magistrate Judge James R. Knepp, II on 9/1/2016. (B,TM)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
STEPHANIE STARK,
Case Number 5:15 CV 477
Plaintiff,
v.
Magistrate Judge James R. Knepp II
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
MEMORANDUM OPINION AND ORDER
INTRODUCTION
Pending before the Court is Plaintiff’s motion for attorney’s fees under the Equal Access
to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), seeking $3,371.61 in fees. (Doc. 22). Defendant,
the acting Commissioner of Social Security (“Commissioner”) did not oppose the motion. (Doc.
23). For the reasons discussed below the undersigned grants the motion.
PROCEDURAL BACKGROUND
Prior to the instant motion, on January 26, 2011, Plaintiff filed an application for
disability insurance benefits (“DIB”) and supplemental security income (“SSI”) alleging
disability as of September 20, 2007. (Tr. 163-69). Plaintiff’s application was denied initially, and
upon reconsideration. (Tr. 121-24, 126-28). Plaintiff filed a timely request for a hearing before
an Administrative Law Judge (“ALJ”). (Tr. 129-30). On July 3, 2013, the ALJ held a hearing at
which Plaintiff and a vocational expert appeared and testified. (Tr. 32-69). On September 24,
2013, the ALJ issued a written decision in which he found Plaintiff not disabled. (Tr. 11-31). On
January 27, 2015, the Appeals Council denied Plaintiff’s request for review, making the hearing
decision the final decision of the Commissioner. (Tr. 1-3); 20 C.F.R. §§ 404.955, 404.981,
416.1455, 416.1481.
Plaintiff then filed an action in the United States District Court seeking review of the
final decision denying benefits. (Doc. 1). The parties consented to the exercise of jurisdiction by
the undersigned in accordance with 28 U.S.C. § 636(c) and Civil Rule 73. (Doc. 14). On March
18, 2016, the undersigned issued a memorandum opinion and order affirming the
Commissioner’s decision in part and reversing and remanding in part. (Docs. 20 & 21).
THE EQUAL ACCESS TO JUSTICE ACT
Under normal circumstances, each party is responsible for its own legal fees.
Scarborough v. Principi, 541 U.S. 401, 404 (2004). However, because paying for one’s own
legal fees can make litigation cost prohibitive, the EAJA exists to encourage lay people to seek
review of unreasonable government action without fear of the substantial cost that litigation can
entail. The EAJA provides, in pertinent part:
[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 (other than cases
sounding in tort), including proceedings for judicial review of agency action,
brought by or against the United States in any court having jurisdiction of that
action, 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).
In this case it is undisputed that Plaintiff is a prevailing party because this court issued a
sentence-four remand. (Docs. 20 & 21). Shalala v. Schaefer, 509 U.S. 293, 301 (1993). Neither
side contends that special circumstances make an award unjust. As such, Plaintiff is entitled to
attorney’s fees and additional expenses if the government’s position was not substantially
justified.1
1. It is also undisputed that Plaintiff’s application is timely, see Shalala, 509 U.S. at 298, and
Plaintiff meets the financial eligibility requirements of EAJA, see Docs. 2 & 4 (in forma
pauperis application and order granting application).
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Substantial Justification
The government’s position is “substantially justified” if it had “a reasonable basis in both
law and in fact” or was “justified to a degree that could satisfy a reasonable person.” Pierce v.
Underwood, 487 U.S. 552, 564-65 (1988). The government’s “position” includes both the
underlying action and the government’s litigation position. 42 U.S.C. §2412(d)(2)(D); Delta
Eng’g v. United States, 41 F.3d 259, 261 (6th Cir. 1994). The burden of showing substantial
justification rests upon the agency. Scarborough v. Principi, 541 U.S. 401, 414-15 (2004).
Here, Plaintiff argues the Commissioner’s decision was not substantially justified. The
Commissioner bears the burden of proving its position was substantially justified; she has not
met that burden because she did not object to Plaintiff’s motion. Thus, the sole issue is whether a
fee above the statutory maximum is warranted in this case.
Amount of Fees and Award
The EAJA provides 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.” 28 U.S.C.
§ 2412(d)(2)(A). To determine the appropriate hourly rate for calculating attorney fees under the
EAJA, the Court must initially determine the prevailing market rate for the kind and quality of
services furnished. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The prevailing market
rate is the rate “prevailing in the community for similar services by lawyers of reasonably
comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984).
“In requesting an increase in the hourly-fee rate [under the EAJA], Plaintiffs bear the burden of
producing appropriate evidence to support the requested increase.” Bryant v. Comm’r of Soc.
Sec., 578 F.3d 443, 450 (6th Cir. 2009) (citing Blum, 465 U.S. at 898). Decisions to adjust the
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hourly rate based on increases in the cost of living are left to the discretion of the district court.
Begley v. Sec’y of Health & Human Servs., 966 F.2d 196, 199 (6th Cir. 1992).
Here, Plaintiff seeks an award at hourly rates of $184.75 and $184.72 for work performed
in 2015 and 2016, respectively. (Doc. 22, at 5 n.1). In support, Plaintiff’s counsel submitted:
1. An affidavit from Plaintiff’s counsel attesting she has practiced social security
law for 30 years and has been involved in a number of leadership positions in
the social security disability field. (Doc. 22-1). Her contingent fee agreement
is for 25% of past-due benefits in social security cases, and while her hourly
rate for 2012 and 2013 was $350 in non-contingent disability cases, she has
often requested the statutory rate of $125 per hour in EAJA applications. Id.
2. Counsel’s itemized statement of work performed in the instant case. (Doc. 222).
3. Counsel’s resume. (Doc. 22-3).
4. The Bureau of Labor Statistics Consumer Price Index (CPI)—Midwest Urban.
(Doc. 22-4).
5. The Ohio State Bar Association’s The Economics of Law Practice in Ohio –
Desk Reference for 2010, which indicates—for the greater Cleveland area in
2010: the average hourly billing rate was $239; the median billing rate was
$210; the average hourly billing rate in the area of administrative law was
$203; and the median rate for administrative law was $180. (Doc. 22-5, at 2425).
6. An affidavit from attorney Paula Goodwin attesting she has over 30 years of
experience, mainly works for a 25% contingency fee in social security
disability cases, has in the past been awarded hourly fees of $350, and
believes Plaintiff’s counsel has the experience and expertise to warrant $350
per hour as a reasonable fee. (Doc 22-6).
7. An affidavit from attorney Louise Mosher attesting she has over 30 years of
experience, and charges $350 per hour. (Doc. 22-7).
This Court and others in the Northern District of Ohio have previously found such
evidence sufficient to support an increase in fees. See, e.g., Britton v. Comm’r of Soc. Sec., 2016
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WL 1732934, at *2 (N.D. Ohio)2; Vasquez v. Astrue, 2012 WL 3637676, at *1-3 (N.D. Ohio);
Rodriguez v. Astrue, 2012 WL 2905928, at *5-6 (N.D. Ohio).
Taking into account the evidence provided, the fact that the Commissioner has not
challenged Plaintiff’s request, and the previous decisions of my colleagues, the Court finds
Plaintiff has shown the requested rate falls within the rate “prevailing in the community for
similar services by lawyers of reasonably comparable skill, experience and reputation.” Blum,
465 U.S. at 895 n.11. The Court therefore grants Plaintiff’s request for increased fees at the
hourly rates of $184.75 and $184.723 for work performed in 2015 and 2016 respectively, for a
total award of $3,371.61.4
CONCLUSION
Following review, the undersigned GRANTS Plaintiff’s Motion for Attorney Fees in the
amount of $3,371.61, representing 15.6 hours at $184.75 per hour and 2.65 hours at $184.72 per
hour.
2. In Britton, the undersigned noted Attorney Goodwin’s affidavit did not support an increase in
fees because it was based on reasonableness, rather than actual prevailing rates. 2016 WL
1732934, at *2 (citing Bryant, 578 F.3d at 450). However, in this case, as in Britton, the other
evidence submitted—Attorney Mosher’s affidavit, the Midwest Urban CPI, and the Ohio State
Bar Association publication—are sufficient to justify the increased rate.
3. This number was reached by comparing the price of services in March 1996 ($151.70)—when
the EAJA was enacted—to the average price of services in 2015 ($224.210) and 2016 (averaged
through April) ($224.182). See Doc. 22, at 5 n.1 & Doc. 23-4 (Consumer Price Index –
Midwest). This leads to inflation factors of 1.4789 and 1.4778 respectively, which, when
multiplied by the $125 statutory rate, produces the calculated hourly rates of $184.75 (for 2015)
and $184.72 (for 2016).
4. This calculation includes 15.6 hours in 2015 at a rate of $184.75 per hour and 2.65 hours in
2016 at a rate of $184.72 per hour. The Court has reviewed the hours expended by Plaintiff’s
attorney and finds them to be reasonable. See Hayes v. Sec’y of Health & Human Servs., 923
F.2d 418, 420 (6th Cir. 1990) (“It is the opinion of this Court that the average number of hours
for an attorney to work on a social security case ranges from 30 to 40 hours.”). Defendant has not
contested the reasonableness of the hours submitted.
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IT IS SO ORDERED.
s/James R. Knepp, II
United States Magistrate Judge
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