Sutton v. Commissioner of Social Security

Filing 17

REPORT AND RECOMMENDATIONS re 15 First MOTION for Attorney Fees under EAJA filed by Jeffery Sutton: that the EAJA fee petition be granted in part and plaintiff awarded $3,562.50. Objections to R&R due by 5/24/2012. Signed by Magistrate Judge Stephanie K. Bowman on 5/7/12. (jl1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JEFFREY SUTTON,

Case No. 1:10-cv-937

Plaintiff,

Barrett, J.
Bowman, M.J.

v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff Jeffrey Sutton filed this Social Security appeal in order to challenge the
Defendant’s finding that he is not disabled. See 42 U.S.C. §405(g). By Report and
Recommendation (“R&R”) filed on December 22, 2011, I previously recommended that
this case be remanded for further review because the Commissioner’s decision was not
supported by substantial evidence in the administrative record. (Doc. 12).

The

Defendant filed no objections, and the R&R was adopted by the presiding district judge
on January 17, 2012. (Doc. 13).
On February 17, 2012, Plaintiff filed a motion seeking an award of $10,265.60 in
attorney’s fees under the Equal Access to Justice Act (“EAJA”). (Doc. 15). Defendant
has filed a response in opposition. (Doc. 16).
I. Analysis
The EAJA provides that:
[A] court shall award to a prevailing party…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
1

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).
On the facts presented, Plaintiff is a “prevailing party” as defined; therefore EAJA
fees “shall” be awarded unless the Commissioner’s position was “substantially justified”
or can demonstrate that “special circumstances” exist. Given the Court’s conclusions in
this case, Defendant does not claim that the Commissioner’s prior litigation position was
“substantially justified” or that “special circumstances” exist that would preclude any
award of fees under the EAJA. Accordingly, the Court must resolve only the calculation
of the fee award.
Plaintiff seeks a fee award that encompasses 28.50 hours of work at fees
ranging from $176.00 to $180.63 per hour which amounts to $5,132.80.1 Plaintiff further
asserts that such amount should be “enhanced by a multiple of 2 for the contingency
factor for a total award of $10,265.60.” (Doc. 15 at 5). Plaintiff has included with his
motion an itemized activity report for the hours counsel expended from the preparation
and filing of the Complaint on December 27, 2010 up to and including his motion for
fees filed just over a year later.
Under the EAJA, the amount of 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). A plaintiff seeking a higher
hourly rate bears the burden of producing appropriate evidence to support the
1

Counsel’s fee calculation applied different monthly multipliers coinciding with the Consumer
Price Index which resulted in range of hourly rates for the relevant period. (Doc. 15 at 3).

2

requested increase. Bryant v. Commissioner of Soc. Sec., 578 F.3d 443, 450 (6th Cir.
2009).

Thus, “[p]laintiffs 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 quoting Blum v. Stenson, 465 U.S. 886, 898 (1984).
Specifically, to comport with Bryant, ”this Court now requires additional proof
such as “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,” or
alternatively, “results of a fee survey conducted by a state or local bar association
committee comprised of lawyers in the social security area of practice.” See Zellner v.
Astrue, 2012 WL 273937 (S.D. Ohio Jan. 31, 2012). See also Bushor v. Comm’r of
Soc. Sec., Case No. 1:09-cv-320-MRB, 2011 WL 3438439 (S.D. Ohio 2011)(reducing
fee to $125 under Bryant where plaintiff’s counsel failed to submit more than a copy of
Consumer Price Index). A mere reference to increased fees awarded in prior cases, or
argument that an increase should be based on increased cost of living, is insufficient to
warrant an increase beyond the statutory maximum attorney fee rate.
In response to Plaintiff’s EAJA petition, Defendant argues that Plaintiff has not
shown that his fee request is reasonable. The undersigned agrees.
In support of his claim for an hourly rate exceeding the statutory rate of $125.00
per hour, counsel submits his own affidavit setting forth his credentials and extensive
experience handling Social Security disability cases. Counsel does not attach any other
additional proof to justify an hourly rate in excess of the statutory rate. As such, the
undersigned finds that counsel for Plaintiff has not proffered any evidence to support an

3

increased hourly rate as outlined by the Sixth Circuit in Bryant.2

Counsel has not

submitted any evidence of the prevailing rate in the local community charged by Social
Security practitioners of similar skill, experience, and reputation. In addition, counsel
has not submitted any evidence on the requested cost-of-living increase. Therefore, the
Court is constrained to limit the hourly fee to the statutory rate of $125.00.
The Court next turns to a discussion of the applicable hours Plaintiff's counsel
worked relative to the sentence four remand, i.e., the hours to which the $125.00 hourly
rate shall be applied. Counsel submits that 28.50 hours of attorney time was spent on
this case before the District Court, including the preparation of the EAJA fee petition
which is compensable pursuant to Commissioner v. Jean, 496 U.S. 154, 162 (1990).
The Court has reviewed the number of hours submitted by counsel and finds such
hours reasonable and relevant to the prosecution of this matter. Compensation for the
28.50 hours at the $125.00 hourly rate yields an attorney fee of $3,562.50 The Court
notes that the Commissioner does not object to hours expended by counsel for Plaintiff
in this litigation. Accordingly, the Court finds such a fee is reasonable and should be
awarded under EAJA.

2

Additionally, and as noted by Defendant, Plaintiff’s request that his fee award be doubled “for the
contingency factor” runs counter to United States Supreme Court authority. See Pierce v.
Underwood, 487 U.S. 552, 573-74 (1988) (contingency not a special factor justifying award
exceeding EAJA fee cap); City of Burlington v. Delaware, 505 U.S. 557, 567 (1992) (federal fee
shifting statutes do not permit enhancement of the lodestar based on contingency).

4

II. Conclusion and Recommendation
Accordingly, IT IS RECOMMENDED that the EAJA fee petition filed by Plaintiff’s
counsel be GRANTED, in part, and that Plaintiff3 be AWARDED $3,562.50 in attorney
fees. If the parties confirm that Plaintiff: (1) has contractually assigned any fee award to
his attorney; and (2) owes no debt to the Government, the Commissioner alternatively
should be permitted to pay the fee award to Plaintiff’s counsel in accordance with any
existing fee contract.
/s Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

3

The Court notes that the Supreme Court has clarified that any fees awarded to a prevailing party
under the EAJA belong to the litigant, not the litigant's attorney. See Astrue v. Ratliff, 560 U.S. ,
130, S.Ct. 2521, 2524 (2010). Without evidence of an assignment to counsel, the Court cannot
award fees directly to Plaintiff’s counsel. In addition, those fees are subject to an offset to satisfy
any pre-existing debt the litigant may owe to the United States. Id.

5

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JEFFREY SUTTON,

Case No. 1:10-cv-937

Plaintiff,

Barrett, J.
Bowman, M.J.

v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s)
of the R&R objected to, and shall be accompanied by a memorandum of law in support
of the objections. A party shall respond to an opponent’s objections within FOURTEEN
(14) DAYS after being served with a copy of those objections.

Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See Thomas
v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

6