Zellner v. Commissioner of Social Security
Filing
16
OPINION AND ORDER granting 13 Motion for Attorney Fees Pursuant to the Equal Access to Justice Act. The Court awards $3,937.00 for fees and costs. No later than 14 days from the date of this Order, the Commissioner will determine whether the Plaintiff owes the Government a pre-existing debt. If no such debt is owed, then payment of the EAJA fees and costs of $3,937.00 will be made directly to Plaintiff's attorney. If Plaintiff does owe a pre-existing debt, the EAJA fees and costs will offset by the amount of the debt, with any remainder to be paid to Plaintiff's attorney. Signed by Judge S Arthur Spiegel on 1/30/2012. (km1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
RANDY LEE ZELLNER,
:
:
:
:
:
:
:
:
:
:
:
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
This
matter
is
before
NO. 1:10-CV-812
OPINION AND ORDER
AWARDING ATTORNEY’S
FEES AND COSTS
the
Court
on
the
Motion
by
Plaintiff’s Attorney for Fees and Costs under Equal Access to
Justice Act, 28 U.S.C. Sections 2412(a) and (d) (doc. 13), the
Government’s memorandum in opposition (doc. 14), and Plaintiff’s
reply (doc. 15).
For the reasons indicated below, we GRANT the
Motion by Plaintiff’s Attorney.
I.
BACKGROUND
On December 14, 2011, this Court affirmed the November
18, 2011 Report and Recommendation of the Magistrate Judge (doc.
10).
She had concluded that the Administrative Law Judge (“ALJ”)
erred in not reviewing or considering the records and test results
of Plaintiff’s treating physician, Dr. Oded Zmora; in failing to
afford Dr. Zmora’s opinion “controlling weight;” in not satisfying
the “good reasons” standard for rejecting Dr. Zmora’s opinion; in
assessing Plaintiff’s residual function capacity; in evaluating the
medical evidence of record (particularly concerning Plaintiff’s use
of his forearms, hands, and fingers); in assessing Plaintiff’s
credibility (including, but not limited to, his “inappropriate
factoring in of substance abuse in the course of evaluating
Plaintiff’s symptoms”); and in posing a hypothetical question to a
vocational expert that did not include the information contained
within
the
records
and
test
results
of
Plaintiff’s
treating
physician, rendering it unsupported by substantial evidence (id. at
7-10,
11,
15,
and
17).
No
objections
to
the
Report
and
Recommendation of the Magistrate Judge were filed, and we found no
clear
error
in
the
record.
On
the
contrary,
we
found
the
Magistrate Judge’s Report and Recommendation to be well-reasoned,
thorough, and correct, and thus we reversed the decision of the ALJ
that
Plaintiff
supplemental
be
denied
security
disability
income
and
insurance
remanded
this
sentence four of 42 U.S.C. § 405(g)) to the ALJ.
benefits
matter
and
(under
Plaintiff’s
attorney now brings the present motion, seeking attorney’s fees and
costs under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. §
2412 (a) & (d). He requests an award in the amount of $3,937.00,
representing 21 hours of work at an adjusted average rate of
$170.00 plus costs of $367.00.
II.
ANALYSIS
Plaintiff’s attorney seeks an award of fees and costs on
the bases that his client is a prevailing party in this cause of
action, and the position of the United States in this litigation
was not substantially justified (doc. 13 at 2, citing Shalala v.
Schaefer, 509 U.S. 292 (1993)). Shalala confirms that, as here, “a
party who wins a sentence-four remand order is a prevailing party”
for purposes of a fees and costs award under the EAJA.
Id. at 301-
02 (citing Texas State Teachers Ass’n v. Garland Independent School
Dist., 489 U.S. 782, 791-92 (1989)).
Plaintiff’s attorney has
attached to his motion an itemized report of the time he spent on
this matter (doc. 13, first attachment).
Also attached to the
motion is a copy of the fee agreement between counsel and Plaintiff
Zellner, a portion of which reads as follows:
The federal court may award attorney fees to this
attorney under the Equal Access to Justice Act, 28 U.S.C.
Section 2412(d). These fees serve as a credit to any
attorney fee which I must pay to this attorney for the
work which he does on my case before the federal court
and thus may reduce the attorney fee which I must pay
this attorney for the work which he does on my case in
the federal court only. In return for this, I assign any
fees awarded under the Equal Access to Justice Act to
this attorney.
(id., fourth attachment).
Given this simple and direct language,
as well as seeing his signature on the copy, we are satisfied that
Plaintiff understands the purpose, and would approve the filing, of
his attorney’s motion.
Recent Supreme Court authority requires us
to clarify, however, that Plaintiff’s attorney is not the proper
movant.
Plaintiff
Astrue v. Ratliff, 130 S. Ct. 2521 (2010).
himself
must
be
regarded
as
the
movant,
Rather,
as
fees
technically can only be awarded to the litigant, even though the
litigant’s attorney may have a beneficial interest in, or even a
contractual right, to said fees.
Id. at 2526-27.
Thus, we
proceed.
In its memorandum in opposition, the Government does not
argue that the Commissioner’s position was substantially justified
and thus an award of fees and costs under the EAJA is improper
(doc. 14 at 1).
Rather, the Government challenges only the
reasonableness of the hourly rate of $170.00 (id. at 2).
It urges
that a rate of $125.00 per hour, at the 21 hours diaried, would
reduce Plaintiff’s fee award, plus $367.00 in costs, to $2,992.00.
Citing Bryant v. Commissioner of Social Security, the
Government maintains that Plaintiff has not met the required burden
of proof somewhat recently clarified by the Sixth Circuit:
In requesting an increase in the hourly-fee rate,
Plaintiffs bear the burden of producing appropriate
evidence to support the requested increase. See Blum v.
Stenson, 465 U.S. 866, 896. 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. at 895 n.11.
578 F.3d 443, 450 (6th Cir. 2009) (emphasis added).
Attaching to
the original motion just the affidavit of his attorney, James Roy
Williams, Esq., in which Mr. Williams details his professional
experience
(doc.
13,
second
attachment),
accompanied
by
the
Department of Labor’s Consumer Price Index (to support of a claim
that the rate of inflation justifies an enhanced hourly rate) (id.,
third attachment), falls short of what Bryant demands.
We must
reluctantly agree with our colleagues sitting in the Western
Division in this regard.
See, e.g., Brown v. Commissioner of
Social Security, No. 1:09-CV-901, 2011 WL 5596918 (S.D. Ohio Nov.
17, 2011) (Weber, S.J.), adopting 2011 WL 5595931 (S.D. Ohio Oct.
7,
2011)
(Litkovitz,
M.J.);
Ball
v.
Commissioner
of
Social
Security, No. 1:09-CV-684, 2011 WL 4914982 (S.D. Ohio Oct. 17,
2011) (Beckwith, S.J.), adopting 2011 WL 4940782 (S.D. Ohio Sept.
21, 2011) (Litkovitz, M.J.); Delver v. Commissioner of Social
Security, No. 1:06-CV-266, 2011 WL 4914875 (S.D. Ohio Oct. 17,
2011) (Weber, S.J.), adopting 2011 WL 4914963 (S.D. Ohio Sept. 9,
2011) (Bowman, M.J.).
We recognize that we previously have awarded fees at an
hourly rate of $170.00 to Mr. Williams as counsel for other social
security claimants, most recently in Stanley v. Commissioner, No.
1:10-CV-507 (S.D. Ohio Jan. 11, 2012).
We also have reviewed
Cowart v. Commissioner of Social Security, in which Magistrate
Judge Whalen awarded an hourly rate of $173 for work performed from
November 2008 to June 2010.
2011).
795 F. Supp. 2d 667, 671 (E.D. Mich.
Cowart differs from the case at bar, however, because,
while the Government opposed a fee award in general, it did not
contest the hourly rate requested by counsel. The hourly rate
sought
by
Mr.
Williams
here
has
been
challenged
by
the
Commissioner, as it was in Stanley, No. 1:10-CV-507 at *3-4 and in
Delver, No. 1:06-CV-266, 2011 WL 4914963, at *1 (S.D. Ohio Sept. 9,
2011) (Bowman, M.J.), adopted by 2011 WL 4914875 (S.D. Ohio Oct.
17, 2011) (Weber, S.J.)
Indeed, even without such a challenge,
some of our colleagues have proceeded as if Bryant requires them to
challenge sua sponte a request for an hourly rate in excess of
$125.
See Brown v. Commissioner of Social Security, No. 1:09-CV-
901, 2011 WL 5596918 (S.D. Ohio Nov. 17, 2011) (Weber, S.J.),
adopting 2011 WL 5595931 (S.D. Ohio Oct. 7, 2011) (Litkovitz,
M.J.); Ball v. Commissioner of Social Security, No. 1:09-CV-684,
2011 WL 4914982 (S.D. Ohio Oct. 17, 2011) (Beckwith, S.J.),
adopting 2011 WL 4940782 (S.D. Ohio Sept. 21, 2011) (Litkovitz,
M.J.).
To his reply memorandum, counsel appends tear sheets from
two different Ohio publications in support of his request for an
enhanced fee.
The first, source unknown, indicates that, as of
2004, the average hourly billing rate for an Ohio attorney in
practice more than 25 years was $200.00; for an attorney who
practices in downtown Cincinnati, apparently irrespective of the
number of years in practice, the rate was $213.00.
Given the
number of settlement conferences that we have conducted since 2004
using the Lloyd’s of London technique, we find these rates to be
consistent with those rates represented by counsel to the Court,
albeit on the low side.
The second sheet, apparently printed from
the Ohio State Bar Association website, indicates that, in 2006,
the median hourly billing rate nationwide for equity partners was
$305.00. While we recognize that this information legitimately may
have appeared on the OSBA’s website, it does not address prevailing
rates within any Ohio community, much less in the more narrow
Greater Cincinnati or downtown Cincinnati areas. Nor does it touch
on fields of practice or levels of experience.
Accordingly, we
cannot give it any weight.1
For purposes of ruling on this motion, we pronounce the
first tear sheet to be adequate, but barely.
More helpful to the
Court, and in the future what we will require to comport with
Bryant, will be affidavits from other members of the local bar in
which they testify as to their years of experience, skill, and
reputation, and thus their consequent hourly rate. Most preferable
would be the results of a fee survey conducted by a state or local
bar association committee comprised of lawyers in the social
security area of practice.
III.
Conclusion
Having
carefully
considered
this
matter,
we
find
reasonable the motion for fees and costs totaling $3,937.00.
Accordingly, we hereby GRANT the Motion by Plaintiff’s Attorney for
Fees and Costs under Equal Access to Justice Act, 28 U.S.C.
Sections 2412(a) and (d) (doc. 13)
Plaintiff’s attorney urges us to honor the assignment of
1
Nor can we be influenced by Judge Richard Posner’s
statements in Mathews-Sheets v. Astrue that an EAJA hourly rate
of $125 for work done in 2009 seems “rather chintzy” and “awfully
low.” 653 F.3d 560, 562, 564 (7th Cir. 2011). These comments
plainly are dicta, as that matter was remanded back to the
district court with the instruction to the plaintiff’s lawyer “to
show that without a cost of living increase that would bring the
fee award up to $170 per hour, a lawyer capable of competently
handling the challenge that his client mounted to the denial of a
social security disability benefits could not be found in the
relevant geographical area to handle such a case.” Id. at 565.
Whether we agree with Judge Posner is irrelevant, as he sits on
the Seventh Circuit, a court of appeals from which we may draw
advisory authority, rather than on the Sixth Circuit, the court
of appeals by which we are bound.
benefits signed by Plaintiff, presuming, of course, Mr. Zellner
owes no pre-existing debt to the Government so as to run afoul of
Ratliff. See Cowart, 795 F. Supp. 2d at 671-72.
We agree that
this result is appropriate given the nature of the litigation
involved; it is of paramount importance to encourage attorneys to
engage in this type of practice so that deserving claimants have
access to competent counsel.2
Thus, no later than 14 days from the
date of this Opinion and Order, the Commissioner will determine
whether the Plaintiff owes the Government a pre-existing debt.
If
no such debt is owed, then payment of the EAJA fees and costs of
$3,937.00 will be made directly to Plaintiff’s attorney.
If the
Plaintiff does owe a pre-existing debt, the EAJA fees and costs
will be offset by the amount of the debt, with any remainder to be
paid to Plaintiff’s attorney.
SO ORDERED.
Dated: January 30, 2012
2
/s/ S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge
Not all lower courts are inclined to endorse this
procedure, with the concern that it “constitute[s] a
determination regarding Plaintiff’s contractual obligation to
[his] attorney despite the fact that this particular issue is not
properly before the Court.” Vanderlaan v. Commissioner of Social
Security, No. 1:10-CV-858, 2011 WL 4479453, at *2 (W.D. Mich.
Sept. 8, 2011). While we respect this premise, we think it
subordinate to the need to stimulate new, as well as continued,
practice in this area of law.
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