Washington v. Commissioner of Social Security

Filing 13

REPORT AND RECOMMENDATIONS re 12 Plaintiff's MOTION for Attorney Fees. It is RECOMMENDED that Plaintiff's motion for attorney fees be GRANTED and that Plaintiff be awarded fees and expenses in the amount of $945.00. Objections to R&R due by 1/24/2014. Signed by Magistrate Judge Stephanie K. Bowman on 1/7/2014. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TIMOTHY WASHINGTON,
Plaintiff,

Case No. 1:13-cv-278
Barrett, J.
Bowman, M.J.

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
I.

Background

On April 26, 2013, Plaintiff, through counsel, initiated this lawsuit, seeking to
appeal the Commissioner’s adverse disability decision. On July 30, 2013, concurrent
with the filing of the administrative record, the parties filed a stipulation agreeing to
remand for further review by the Commissioner.

That motion was granted and

judgment was entered on August 29, 2013. (Doc. 10, 11). On November 11, 2013,
Plaintiff filed a motion seeking an award of $995.00 in attorney’s fees and costs
pursuant to the Equal Access for Justice Act, 28 U.S.C. §2412 et seq. (Doc. 12).
II.

Analysis

Defendant elected not to file any response and the undersigned has carefully
reviewed Plaintiff’s fee petition under the Equal Access for Justice Act. Pursuant to that
statute, it appears that Plaintiff is a prevailing party entitled to an award of her fees and
expenses. 28 U.S.C. §2412(d)(1)(A). The court does not find that the position of the
United States was substantially justified, or that other circumstances would make an
award unjust. See id. The motion appears to have been timely filed, within thirty (30)

days after the judgment of this Court became final and non-appealable, and the number
of hours expended (3.5) is reasonable. In order to determine the total award then, the
Court must therefore determine the hourly rate to be used as a multiplier.
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
requested increase. Bryant v. Commissioner of Soc. Sec., 578 F.3d 443, 450 (6th Cir.
2009). A plaintiff 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.”
Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). The Sixth Circuit has noted the
Congressional choice not to apply cost of living increases in reenacting the EAJA,
holding that “the statutory rate is a ceiling and not a floor.” Chipman v. Sec’y of HHS,
781 F.2d 545, 547 (6th Cir. 1986).
In this case, Plaintiff seeks compensation at the hourly rate of $170.00 per hour.
In support of this higher rate, counsel has submitted her own affidavit, evidence of the
Consumer Price Index, evidence of similar awards in this district, articles evidencing
average billing rates in Cincinnati, Ohio, and other regional and nationwide surveys of
billing rates. None of the referenced surveys provide strong evidence of the prevailing
hourly rates for social security cases, which traditionally are compensated at lower rates
than other civil cases. Nevertheless, in light of the reasonableness of the rate sought
and the fact that the fee petition is uncontested, the undersigned finds the evidence
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submitted to be adequate to support the higher rate of $170.00 per hour. 1 Multiplying
that rate times the number of hours (3.5) yields a fee of $595.00. In addition to her
attorney’s fees, Plaintiff seeks reimbursement of her costs, specified as $400.00
required to file the complaint. However, the record reflects that the filing fee paid to the
Court was $350.00. (Doc. 1). Thus, the total award to be made under the EAJA is
$945.00.
Having determined that Plaintiff is entitled to a fee award of $945.00, the only
remaining issue is to identify the party to whom that award should be made. In general,
the fee award belongs to the plaintiff and not to counsel. For that reason, the United
States is entitled to an offset in the event that a claimant owes a debt to the United
States. See generally Astrue v. Ratliff, 130 S. Ct. 2521 (2010). However, it is common
for a claimant to execute an assignment of any fee award to his or her attorney. In this
case Plaintiff has not indicated whether or not an assignment agreement was executed,
and this Court is without information concerning whether Plaintiff owes a debt to the
United States.
To the extent that such information might be submitted following entry of this
Report and Recommendation, the undersigned notes her agreement with the 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., 916 F.Supp.2d 834 (S. D. Ohio 2013)(collecting cases and
1

Plaintiff should take note, however, that the Court has previously rejected motions seeking rates in
excess of $125 per hour where counsel failed to submit additional particularized evidence, such as
“results of a fee survey conducted by a state or local bar association committee comprised of lawyers in
the social security area of practice.” Scales v. Astrue, No. 1:10-cv-267, Doc. 36, R&R adopted at 2013
WL 2423995 at *5 (S.D. Ohio, June 3, 2013)(adopted by Dlott, J., quoting Zellner v. Astrue, 2012 WL
273937 (S.D. Ohio Jan. 31, 2012)).

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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)); accord Crim v. Com’r of Soc. Sec., 2013 WL 3367337 (Dlott,
J., adopting same approach over Objections); see also Cox v. Astrue, 927 F. Supp.2d
659 (E.D. Ky.2013)(holding that under Astrue v. Ratliff, 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 language in prior R&Rs has
suggested that the United States “may” pay the fee directly to counsel once it confirms
that no debt is owed, even that language exceeds the scope of the dispute before this
Court and may improperly suggest an opinion about an unconsidered issue. See e.g.
Cox, 917 F. Supp.2d at 662 (suggesting 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 explained herein, IT IS RECOMMENDED THAT Plaintiff’s
motion for attorney fees (Doc. 12) be GRANTED and that Plaintiff be awarded fees and
expenses in the amount of $945.00.

/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
TIMOTHY WASHINGTON,

Case No. 1:13-cv-278

Plaintiff,

Barrett, J.
Bowman, M.J.

v.
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).

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