Smith v. Commissioner of Social Security

Filing 19

REPORT AND RECOMMENDATIONS re 18 MOTION for Attorney Fees pursuant to the EAJA filed by Stephen Jason Smith: that plaintiff's motion be GRANTED in part; and plaintiff awarded $2780.25. Objections to R&R due by 4/8/2013. Signed by Magistrate Judge Stephanie K. Bowman on 3/20/13. (jl1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

STEPHEN JASON SMITH,
Plaintiff,

Case No. 1:11-cv-778
Dlott, J.
Bowman, M.J.

v.

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

REPORT AND RECOMMENDATION
I. Background
Plaintiff Stephen Smith 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). In a Report and
Recommendation filed on October 23, 2012 (Doc. 15) and subsequently adopted as the
opinion of the Court (Doc. 16), the Court reversed the ALJ’s finding of non-disability and
remanded for further development of the record under sentence four of the Social
Security Act.
Plaintiff filed a timely motion seeking an award of attorney’s fees and costs
pursuant to the Equal Access for Justice Act (“EAJA”). (Doc. 18). The Commissioner
filed no response in opposition, and the time for doing so has now expired.
II. Analysis
A. Fees and Costs Should be Awarded in the Amount of $2780.25
The EAJA provides for an award to any “prevailing party” of “fees and other

expenses…in any civil action…brought by or against the United States.” 28 U.S.C.
§2412(d)(1)(A). Fees and costs generally will be awarded as long as the position of the
Commissioner was not “substantially justified.” Id., at §2412(d)(1)(B).

Plaintiff’s

unopposed motion clearly establishes that he is a prevailing party who is entitled to an
award under the EAJA.

Plaintiff has fully complied with all EAJA requirements,

including the submission of “an itemized statement…stating the actual time expended
and the rate at which fees and other expenses were computed,” 42 U.S.C.
§2412(d)(1)(B).
The court retains the ultimate discretion to determine what is a “reasonable
attorney fee.” Id. at §2412(d)(1)(D). In this case, Plaintiff’s motion establishes, through
inclusion of contemporaneous time records, that counsel reasonably expended 22.2
hours in litigating this social security appeal, including the motion for fees. Counsel
does not seek an award in excess of the $125 hourly rate provided for by statute, which
cannot be exceeded “unless the court determines that an increase in the cost of living or
a special factor…justifies a higher fee.” 28 U.S.C. §2412(d)(2)(A); see also Bryant v.
Commissioner of Soc. Sec., 578 F.3d 443 (6th Cir. 2009)(holding that the plaintiff bears
the burden of submitting evidence in support of any higher rate). Plaintiff also has
documented costs in the amount of $5.25. Therefore, the undersigned recommends
that Plaintiff’s motion be granted, and that a total award of fees and costs be made in
the amount of $2780.25.
B. Award to Plaintiff, not Counsel
As an exhibit to the motion, Plaintiff’s counsel has submitted evidence of the
assignment of any EAJA award to his attorney. Counsel further represents that he is

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“unaware” of any debt that Plaintiff may owe to the United States, and seeks that the
award of fees be made payable to counsel. However, the undersigned is persuaded by
the decisions of a growing consensus of courts within the Sixth Circuit that “[u]nder
Ratliff, the proper course is to award fees directly to Plaintiff and remain silent as to the
direction of those fees.” Oliver v. Com’r of Soc. Sec., ___ F.Supp.2d ___, 2013 WL
65429 *3 (S. D. Ohio Jan. 3, 2013)(collecting cases and quoting Cornell v. Com’r of
Soc. Sec., 2:11-cv-97, 2012 U.S. Dist. LEXIS 6115, at *6-7 (S.D. Ohio May 2, 2012));
see also Cox v. Astrue, ___ F. Supp.2d ___ , 2013 WL 217033 at *2 (E.D. Ky. Jan. 16,
2013)(holding that under Astrue v. Ratliff, 130 S. Ct. 2521 (2010), fees should be paid to
litigants regardless of whether the Commissioner shows that the plaintiff owes a federal
debt or not).
The issue of Plaintiff’s assignment is a matter of contract law not presented as a
dispute before this Court. The fee award neither bars the United States from honoring a
valid assignment, nor prevents it from disputing it.

Although the undersigned has

included language in prior R&Rs suggesting that the United States “may” pay the fee
directly to counsel once it confirms that no debt is owed, 1 even that language exceeds
the scope of the dispute before this Court and may improperly suggest an opinion about
an unconsidered issue. Compare, e.g. Cox, 2013 WL 217033 at *2 (holding that “any
assignment of an EAJA award that predates the actual award of fees is void” under the
Anti-Assignment Act, additional citations omitted).
III. Conclusion and Recommendation
For the reasons discussed herein, IT IS RECOMMENDED THAT:

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Whether Plaintiff owes a federal debt can be definitively determined only by the United States,
represented in this case by the Commissioner.

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1.

Plaintiff’s motion seeking a fee award under the EAJA (Doc. 18) be

GRANTED in part;
2. Plaintiff should be awarded the sum of $2780.25, representing an attorney fee
award that reflects a reasonable number of hours (22.2) at the statutory rate of $125.00,
plus costs of $5.25.

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

STEPHEN JASON SMITH,

Case No. 1:11-cv-778

Plaintiff,

Dlott, 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 and 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).

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