Johnson v. Commissioner of Social Security et al
Filing
19
OPINION AND ORDER granting 16 Plaintiff's Motion for Attorney Fees and Costs Under the Equal Access to Justice Act. The Court AWARDS Plaintiff $9,711.00. Signed by Judge S Arthur Spiegel on 8/5/2014. (km1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
BETTY JOHNSON,
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:
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:
:
:
:
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:
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Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Case No. 1:12-CV-590
OPINION AND ORDER
AWARDING ATTORNEY’S FEES
AND COSTS
Defendant.
This matter is before the Court on Plaintiff’s Motion for
Attorney’s Fees and Costs under the Equal Access to Justice Act
(doc.
16),
to
which
Defendant
Plaintiff has replied (doc. 18).
Woliver,
asks
for
a
total
has
responded
(doc.
17)
and
Plaintiff, by her attorney John
award
of
$9,711.00,
specifically
$9,361.00 for fees pursuant to 28 U.S.C. § 2412(d) and $350.00
for costs pursuant to 28 U.S.C. § 2412(a)(1).
Plaintiff seeks an award of fees and costs on the bases that
she is a prevailing party and the position of the United States
in this litigation was not substantially justified (see doc. 16
at 2).
Plaintiff’s attorney has attached to the instant motion
an itemized report of the time he spent on this matter (doc. 16-1
attachment 1). And in compliance with Bryant v. Comm’r of Soc.
1
Sec., 578 F.3d 443, 450 (6th Cir. 2009), he also has included his
own affidavit in which he details his considerable professional
experience (doc. 16-1 at 2 ¶¶ 4,5); the Department of Labor’s
Consumer
inflation
Price
Index
justifies
(to
support
an
enhanced
a
claim
hourly
that
the
rate)
rate
(doc.
of
16-1
attachment 2); and an affidavit from Lawrence Fisse, Esq., in
which he testifies as to his own professional experience in the
social security disability practice, as well as Mr. Woliver’s,
and verifies that the time diaried by Plaintiff’s attorney in
this
matter
is
reasonable
and
confirms
that
the
hourly
rate
requested is in line with what a member of the Clermont County,
Ohio local bar typically would realize (doc. 16-3).
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. 17 at 2).
Rather, the Government challenges both
the reasonableness of the hourly rate of $185.00 requested and
the number of hours diaried.
It urges that a rate of $125.00 per
hour, for 30 rather than 50.6 hours, would appropriately reduce
Plaintiff’s fee award to $3,750.00 (see id. at 8).
Presumably
the Government does not contest the request for an award of costs
in the amount of $350.00.
2
I.
Discussion
A. Reasonableness of the Hourly Rate Requested
The Government urges that Plaintiff has not met her burden
under Bryant to justify an increase in the statutory ceiling rate
of
$125.00
per
hour.
See
Bryant,
supra,
(construing 28 U.S.C. § 2412(d)(2)(A)1).
578
F.3d
at
450
We disagree.
This
Court previously has outlined what we require in this regard to
conform
with
complied.
the
Sixth
Circuit’s
in
and
Plaintiff
has
See Zellner v. Astrue, No. 1:10-CV-812, 2012 WL 273937
(S.D. Ohio Jan. 31, 2012).
rate
directive
excess
of
number of occasions.
$125.00
We have awarded fees at an hourly
in
appropriate
circumstances
on
a
Ringel v. Comm’r of Soc. Sec., No. 1:12-CV-
521 (S.D. Ohio May 22, 2014) ($170.00); McKinney v. Comm’r of
Soc. Sec., No. 1:13-CV-527 (S.D. Ohio Apr. 11, 2014) ($180.00);
Godby-Dean v. Comm’r of Soc. Sec., No. 1:12-CV-734 (S.D. Ohio
Apr. 4, 2014) ($170.00); Schott v. Comm’r of Soc. Sec., No. 1:12CV-918 (S.D. Ohio Mar. 18, 2014) (greater than $180.00); Zellner,
1
Under the EAJA, an attorney’s fees award
shall be based upon prevailing market rates for the kind and
quality of services furnished, except that . . . 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).
3
supra, 2012 WL 273937, at *3 ($170.00); Stanley v. Comm’r of Soc.
Sec., No. 1:10-CV-507, 2012 WL 84081 (S.D. Ohio Jan. 11, 2012)
($170.00); Dunigan v. Comm’r of Soc. Sec., No. 1:08-CV-501 (S.D.
Ohio Oct. 28, 2009) ($165).
challenged
the
rate
In some cases the Commissioner
requested
(Stanley,
Godby-Dean,
Schott,
Zellner), and, in others, did not (Ringel, McKinney, Dunigan).
The Government’s arguments are not persuasive.
attorneys
who
represent
security
disability
claimants
benefits
seeking
previously
an
That other
award
have
of
social
sought,
or
stipulated to, an hourly rate of $125.00 on behalf of their
clients
is
not
dispositive.
Moreover,
the
Commissioner
is
mistaken in stating that the affidavits of Messrs. Woliver and
Fisse fail to establish “a prevailing market rate for Social
Security appeals in Southwestern Ohio” (doc. 17 at 6).
Both
attorneys have practiced in Batavia, Clermont County, Ohio for
thirty-five years or more, and both represent clients seeking
awards of social security disability benefits and supplemental
security
income,
with
Mr.
Woliver’s
practice
including
such
matters “at all times” since he left the employ of the Legal Aid
Society of Cincinnati in 1982.
Adcock-Ladd v. Sec’y of Treasury,
227 F.3d 343 (6th Cir. 2004), cited by the United States, is
completely inapposite.
In that case, the plaintiff was forced to
hire as “local counsel” a “highly experienced” Washington, D.C.
4
lawyer in order to depose the Deputy Assistant Director of the
Secret Service in our national capital.
issue
was
whether
his
$300.00
per
hour
227 F.3d at 346.
fee,
double
that
At
of
counsel practicing in the Knoxville area, ought to be awarded to
the plaintiff as a prevailing party under the EAJA.
47.
Because
the
United
States’
“obstructive
Id. at 346and
dilatory
litigation tactics” forced her to hire a higher-priced attorney,
the
Sixth
Circuit
concluded
that
the
plaintiff
was
indeed
entitled to recover fees at the more expensive Washington, D.C.
rate.
Id. at 351.
In contrast, Mr. Woliver is a familiar
practitioner in the local bar for the Southern District of Ohio
and
is
not
seeking
an
hourly
rate
out
of
step
with
“‘those
prevailing in the community for similar services by lawyers of
reasonably
comparable
skill,
experience,
and
reputation.’”
Bryant, supra, 578 F.3d at 450 (quoting Blum v. Stenson, 465 U.S.
886, 895 n.11 (1984)).
Accordingly, based on this Court’s
considerable experience in deciding motions for fees under the
EAJA, as well as the materials tendered by counsel for Plaintiff
in support, we are satisfied that the hourly rate requested,
$185.00 per hour, is reasonable.
B. Number of Hours Diaried
The Government also urges that “the number of hours incurred
by counsel is excessive and does not exhibit billing judgment[]”
5
(doc. 17 at 7).
history.
2004.
Again, we disagree.
This case has a ten-year
Plaintiff originally filed for benefits in September
She first sought judicial review of the Commissioner’s
decision to deny her benefits in December 2009.
We remanded the
matter under Sentence Four, with very specific instructions to
the ALJ.
A second, then a third, administrative hearing was
held, resulting in another decision denying benefits.
In her
second appeal to this Court, Plaintiff alleged eight assignments
of
error,
all
reject.
impressively
of
Her
which
the
counsel’s
briefed,
Magistrate
objections,
persuaded
us
Judge
recommended
thoroughly
that
the
and
we
quite
Commissioner’s
decision merited reversal with an immediate award of benefits.
Plaintiff’s counsel acknowledges that the number of hours
diaried is “higher than most Social Security cases[]” (doc. 18 at
4).
We recognize, however, drawing again on our considerable
experience, that this case is far from typical.
To begin, we
note that the severe impairments at issue included fibromyalgia,
a complex medical condition.
The administrative record, which
included the transcripts from three full hearings before the ALJ
and voluminous medical evidence, was obviously long.
Plaintiff’s
brief containing her Statement of Errors (doc. 5) submitted to
the Magistrate Judge was more than 20 pages, as was her brief
containing
her
Objections
to
6
the
unfavorable
Report
and
Recommendation that we reviewed (doc. 13).
to
the
Court
was
the
six-page
Appendix
Particularly helpful
to
her
Objections
outlining Plaintiff’s post-insured treatment for pain management
(doc. 13-1).
The Court is satisfied that none of the hours
diaried are “excessive, redundant or otherwise unnecessary,” see
generally Hensley v. Eckerhart, 461 U.S. 424, 434 (1983), and
thus finds the request for a fee award including all 50.6 hours
to be reasonable in this instance.
II.
Conclusion
For the reasons set forth above, the Court GRANTS Plaintiff’s
Motion for Attorney’s Fees and Costs under the Equal Access to
Justice Act (doc. 16) and thus AWARDS her $9,711.00.
SO ORDERED.
Dated:
August 6, 2014
s/S. Arthur Spiegel________________
S. Arthur Spiegel
United States Senior District Judge
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