Huminski v. Commissioner of Social Security

Filing 22

Memorandum Opinion and Order: For the reasons set forth herein, the parties' joint stipulation to award Equal Access to Justice Act attorney fees pursuant to 28 U.S.C. Section 2412 in the amount of $5,250.00 is approved, and the amount shall be paid in accordance with the procedure outlined above. (Related Doc. No. 21 ). Judge Sara Lioi on 2/20/2018. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DAVID JOHN HUMINSKI,

PLAINTIFF,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
DEFENDANT.

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CASE NO. 5:16-cv-3000

JUDGE SARA LIOI

MEMORANDUM OPINION
AND ORDER

Before the Court is the parties’ joint stipulation to award attorney fees under the Equal
Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”). (Doc. No. 21.) For the reasons and in the
manner set forth herein, the joint stipulation is approved.
I. BACKGROUND
On December 15, 2016, plaintiff David Huminski filed this action seeking judicial review
of defendant’s denial of his application for a period of disability, disability insurance benefits, and
supplemental security income. On December 6, 2017, the assigned magistrate judge issued a
Report and Recommendation (“R&R”) that the Commissioner’s decision should be vacated and
the case remanded for further proceedings. The Commissioner indicated that she had no objection
to that recommendation. On December 21, 2017, the R&R was accepted and the case was
remanded.
The parties filed the instant joint stipulation, with supporting documentation, stipulating to
an EAJA award in the amount of $5,250.00, indicating that this amount will represent a

compromise of disputed positions and will fully satisfy any and all of plaintiff’s claims for fees,
costs, and expenses under the EAJA.
II. DISCUSSION
The EAJA requires the government to pay a prevailing plaintiff’s attorney fees and costs
“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 Howard v. Barnhart,
376 F.3d 551, 554 (6th Cir. 2004). There is no dispute here that the government’s position was not
substantially justified and that plaintiff is the “prevailing party” under the EAJA. See Hammock v.
Comm’r of Soc. Sec., No. 1:12-CV-250, 2015 WL 7292750, at *1 (S.D. Ohio Oct. 26, 2015), report
and recommendation adopted sub nom Hammock v. Acting Comm’r of Soc. Sec., No. 1:12-CV250, 2015 WL 7276087 (S.D. Ohio Nov. 18, 2015) (“A plaintiff who wins a remand of her social
security appeal in this Court is a ‘prevailing party[.]’”).
Although the parties have stipulated to the amount of an award, the Court must still
examine it for reasonableness. 28 U.S.C. § 2412(d)(2)(A) (“fees and other expenses” includes,
inter alia, “reasonable attorney fees”). The EAJA provides that the amount of an attorney fee
award shall be based upon prevailing market rates, but shall not exceed $125 per hour, unless the
Court determines that the cost of living or special factors justifies a higher fee. 28 U.S.C. §
2412(d)(2)(A)(ii).
Documentation submitted by plaintiff’s counsel shows 31.6 hours of legal services
performed between October 18, 2016 and January 3, 2018 (including the typical legal services of
reviewing the administrative record, telephone calls, briefing, reviewing court orders, and the like),
plus $415.97 in expenses (primarily the filing fee), for a total request of $5,945.97 in fees and

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costs. (Doc. No. 21-2.) The Court finds reasonable both the amount and the nature of the legal
services performed.
Plaintiff’s counsel requests a billing rate of $175/hour. This rate is an upward departure
from the $125.00 statutory cap. It is common, although not required, to adjust the statutory hourly
rate to account for cost of living increases since 1996, the time when that rate was last capped. See
Gisbrecht v. Barnhart, 535 U.S. 789, 796 n.4, 122 S.Ct. 1817, 152 L.Ed.2d 996 (2002) (“A higher
fee may be awarded if ‘the court determines that an increase in the cost of living . . . justifies a
higher fee.”) (quoting 28 U.S.C. § 2412(d)(2)(A)(ii)); see also Hutchinson v. Colvin, No. 1:15-cv1144, 2016 WL 6777804, at *2 (N.D. Ohio Nov. 16, 2016) (examining the appropriateness of a
cost of living increase).
The rates proposed by counsel comport with the measure of inflation in this geographic
region (i.e., the “Midwest Urban” Consumer Price Index (“CPI”)).1 Crenshaw v. Comm’r of Soc.
Sec., No. 1:13CV1845, 2014 WL 4388154, at *3 (N.D. Ohio Sept. 5, 2014) (collecting cases).
In light of these facts and calculations, the Court finds that the $5,250.00 stipulated award
is both reasonable and adequately reflective of “the prevailing market rates for the kind and quality
of services furnished[.]” 28 U.S.C. § 2412(d)(2)(A). This award will be in full satisfaction of any
and all of plaintiff’s claims for fees, costs, and expenses, and is subject to setoff to satisfy any preexisting debt owed by plaintiff to the United States. See Astrue v. Ratliff, 560 U.S. 586, 130 S.Ct.
2521, 177 L.Ed.2d 91 (2010).

The measure of inflation in this geographic region is the “Midwest Urban” Consumer Price Index (“CPI”), which is
available on the website of the Bureau of Labor Statistics (http://www.bls.gov). The average Midwest Urban CPI for
the period in which plaintiff’s counsel provided services in this case is 230.548. Dividing this number by 151.7 (the
CPI for March 1996) results in a cost of living calculation of 1.52. Multiplying $125 by 1.52 results in an adjusted
hourly rate of $189.00. Therefore, the requested rate of $175.00 is not unreasonable.
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Defendant is directed to determine, within 30 days from the date of this order, whether
plaintiff owes any pre-existing debt to the United States, to offset any such debt against the award
granted herein, and to generate an invoice for any balance that directs the Department of Treasury
to pay that balance to plaintiff’s attorney pursuant to the attorney’s fee assignment duly signed by
plaintiff and his counsel. (See Doc. No. 21-1.)

III. CONCLUSION
For the reasons set forth herein, the parties’ joint stipulation to award EAJA attorney fees
pursuant to 28 U.S.C. § 2412 in the amount of $5,250.00 is approved, and the amount shall be paid
in accordance with the procedure outlined above.

IT IS SO ORDERED.
Dated: February 20, 2018
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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