Harriman v. Commissioner of Social Security
Filing
25
OPINION AND ORDER - Plaintiffs Motion, [Doc. No. 24], is GRANTED in part. Plaintiff is AWARDED an attorney fee under the Equal Access to Justice Act in the amount of $4,233.42. Signed by Judge James L Graham on 4/25/13. (ds)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MELISSA A. HARRIMAN,
Plaintiff,
vs.
Civil Action 2:12-CV-33
Judge Graham
Magistrate Judge King
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
OPINION AND ORDER
This case sought review, under the provisions of 42 U.S.C. § 405(g),
of a final decision of the Commissioner of Social Security denying
plaintiff’s application for supplemental security income.
On February 25,
2013, this Court reversed the decision of the Commissioner and remanded
the action to the Commissioner for further proceedings.
22.
Order, Doc. No.
Final judgment pursuant to Sentence 4 of 42 U.S.C. § 405(g) was entered
that same date.
Judgment, Doc. No. 23.
This matter is now before the Court
on Plaintiff Melissa A. Harriman’s Motion for Award of Attorney Fees and
Costs Pursuant to the Equal Access to Justice Act (“Plaintiff’s Motion”),
Doc. No. 24.
Plaintiff specifically seeks an award of $4,233.42 for 23.00
hours of work compensated at an average hourly rate of approximately $184.06
per hour.
Plaintiff’s Motion, p. 1.
response to Plaintiff’s Motion.
The Commissioner has not filed a
For the reasons that follow, Plaintiff’s
Motion is GRANTED in part.
1
II.
STANDARD
The Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, authorizes
an award of fees incurred in connection with judicial proceedings:
[A] court shall award to a prevailing party other than the United
States fees and other expenses . . . incurred by that party in
any civil action . . . including proceedings for judicial review
of agency 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).
In Commissioner, INS v. Jean, 496 U.S. 154
(1990), the United States Supreme Court explained that, under the EAJA,
eligibility for a fee award in any civil action requires: (1)
that the claimant be a “prevailing party”; (2) that the
Government’s position was not “substantially justified”; (3)
that no “special circumstances make an award unjust”; and, (4)
pursuant to 28 U.S.C. § 2412(d)(1)(B), that any fee application
be submitted to the court within 30 days of final judgment in
the action and be supported by an itemized statement.
Id. at 158.
III. DISCUSSION
This action was remanded to the Commissioner and final judgment was
entered pursuant to Sentence 4 of 42 U.S.C. § 405(g) on February 25, 2013.
See Order, Doc. No. 22; Judgment, Doc. No. 23.
Plaintiff is a “prevailing
party” under the EAJA because she received a Sentence 4 remand order.
Shalala v. Schaefer, 509 U.S. 292, 301-02 (1993).
See
Plaintiff’s Motion was
also filed within 30 days of final judgment, as required under the EAJA.
See 28 U.S.C. § 2412(d)(1)(B).
Whether
or
not
the
Commissioner’s
position
was
substantially
justified is essentially a question of reasonableness.
Sullivan v.
Hudson, 490 U.S. 877, 883-85 (1989); Pierce v. Underwood, 487 U.S. 552,
2
564-65 (1988).
The position of an agency is “substantially justified” if
it is “‘justified in substance or in the main’ – that is, justified to a
degree that would satisfy a reasonable person.”
565-66.
The
Commissioner’s
litigation
Underwood, 487 U.S. at
position
is
justified” if it is reasonable in both law and fact.
“substantially
Id.
An agency’s
position can be substantially justified even if a court ultimately finds
it erroneous or not supported by substantial evidence.
See United States
v. 2323 Charms Rd., 946 F.2d 437, 440 (6th Cir. 1991).
However, the burden
of
the
showing
substantial
justification
rests
with
Commissioner.
Scarborough v. Principi, 541 U.S. 401, 414 (2004); United States v. True,
250 F.3d 410, 419 n.7 (6th Cir. 2001).
In the case sub judice, the Court reversed the decision of the
Commissioner and remanded the matter for further proceedings because the
administrative law judge’s evaluation of Listing 12.05C was not supported
by
substantial
evidence.
See
Order,
Recommendation, Doc. No. 21, p. 9.
Doc.
No.
22;
Report
and
As the Magistrate Judge stated in
recommending the remand of this action, the administrative law judge’s
finding in evaluating Listing 12.05C, i.e., that plaintiff did not have
a
physical
or
other
mental
impairment
imposing
an
additional
and
significant work-related limitation of function, was inconsistent with his
prior finding “that plaintiff suffers other severe physical and mental
impairments.”
Report and Recommendation, p. 9.
The administrative law
judge’s decision was internally inconsistent and the Commissioner does not
argue that its position was substantially justified.
The Court therefore
concludes that the position of the Commissioner was not substantially
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justified and that an award of fees under the EAJA is warranted.
See True,
250 F.3d at 419 n.7 (“[U]nder the EAJA it is the government’s burden to
prove that its position was substantially justified.”).
Having determined that attorneys’ fees should be awarded under the
EAJA, the Court must also determine what fee is reasonable.
See 28 U.S.C.
§ 2412(d)(2)(A); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (The
plaintiff has the burden of proving that the fees requested under the EAJA
are in fact reasonable.).
Plaintiff seeks an award of attorneys’ fees in
the amount of $4,233.42, itemized as follows:
Hourly Rate1
$
181.62
$
181.97
$
182.77
$
184.16
$
184.50
$
184.23
$
183.93
$
184.95
$
184.87
$
184.87
$
184.87
Hours
1.50
3.00
0.25
1.50
8.25
0.25
0.50
3.25
0.25
1.00
3.25
Total:
Date
Nov-11
Jan-12
Feb-12
Mar-12
May-12
Jun-12
Jul-12
Aug-12
Jan-13
Feb-13
Mar-13
23.00
Fee
$
272.43
$
545.91
$
45.69
$
276.24
$ 1,522.13
$
46.06
$
91.97
$
601.09
$
46.22
$
184.87
$
600.83
$
4,233.42
Plaintiff’s Motion, Exhibit D, at p. 16.
An award under the EAJA must be reasonable:
1
It appears that plaintiff determined the hourly rate by dividing the United States
Bureau of Labor Statistics’ Consumer Price Index (“CPI”) for the month in which
services were rendered by the CPI for March 1996, and then multiplying that figure
by $125.00. The more common method of determining a CPI adjusted hourly rate is
to divide the average annual CPI for the year in which services were rendered by
the CPI for March 1996, and then multiplying that figure by $125.00. See e.g.,
Couch v. Comm’r of Soc. Sec., No. 1:11-cv-17, 2012 WL 6644284, at *5 (S.D. Ohio
Dec. 20, 2012); Willis v. Comm’r of Soc. Sec., No. 10-CV-594, 2012 WL 4322604,
at *3 (S.D. Ohio Sept. 20, 2012); McKenzie v. Comm’r of Soc. Sec., No. 1:09-cv-341,
2011 WL 2580279, at *5 (S.D. Ohio June 6, 2011). Plaintiff’s method is acceptable
here because it results in an hourly rate that is slightly lower than the figure
generated by the more common method of calculation.
4
The amount of fees awarded under this subsection shall be based
upon prevailing market rates for the kind and quality of the
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).
not a floor.”
The $125.00 “statutory rate is a ceiling and
Chipman v. Sec’y of Health & Human Servs., 781 F.2d 545,
547 (6th Cir. 1986).
Therefore, a plaintiff bears the burden of providing
evidence sufficient to support a request for an award calculated at a higher
hourly rate.
Bryant v. Comm’r of Soc. Sec., 578 F.3d 443, 450 (6th Cir.
2009) (citing Blum v. Stenson, 465 U.S. 886, 898 (1984)).
To meet this
burden, 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.”
Id. (quoting
Blum, 465 U.S. at 895 n.11).
Once the district court has examined the prevailing market rate, it
must then consider whether a fee in excess of the $125.00 statutory cap
is justified based on cost of living increases.
28 U.S.C. § 2412(d)(2)(A);
Begley v. Sec’y of Health & Human Servs., 966 F.2d 196, 199-200 (6th Cir.
1992).
“[E]ven though the cost of living has risen since the enactment
of the EAJA,” the decision whether or not to grant such an adjustment is
left to the sound discretion of the district court.
Id. at 199-200.
Simply submitting the Department of Labor’s Consumer Price Index and
arguing that the rate of inflation justifies an enhanced hourly rate does
5
not warrant an increase in the rate.
Bryant, 578 F.3d at 450.
In the case presently before the Court, plaintiff has submitted the
affidavit of his attorney, Clifford M. Farrell, the Department of Labor’s
Consumer Price Index, the affidavit of Gary J. Pandora, Esq., and a copy
of The Economics of Law Practice in Ohio in support of the proposed hourly
rate.
The affidavit of plaintiff’s attorney sets forth his normal rate
in non-contingent matters at $175 per hour.
See Affidavit of Plaintiff’s
Attorney, Clifford M. Farrell, attached to Plaintiff’s Motion as Exhibit
B, at p. 2.
The affidavit of Gary J. Pandora, Esq., an attorney in Columbus,
Ohio who has represented Social Security claimants in federal court, avers
that an hourly rate of “up to $200-225 per hour” is “in line with prevailing
rates in Ohio for the same type of services provided by lawyers of reasonably
comparable skill, experience and reputation” to plaintiff’s attorney.
Affidavit of Gary J. Pandora, attached to Plaintiff’s Motion as Exhibit
E, at p. 2.
Additionally, plaintiff has provided evidence that the mean
billing rate in the Downtown Columbus area, where plaintiff’s attorney
practices, is $266 per hour, the mean billing rate for trial attorneys is
$244 an hour, and the mean billing rate in Ohio for attorneys with more
than 25 years’ experience is $229 an hour.
See The Economics of Law
Practice in Ohio, attached to Plaintiff’s Motion as Exhibit F.
circumstances,
satisfactory
the
Court
evidence
that
concludes
the
that
requested
plaintiff
average
has
hourly
Under the
provided
rate
of
approximately $184.06 is in line with the rates prevailing in the community
for similar services by lawyers of reasonably comparable skill, experience
and reputation.
Cf. Delver v. Astrue, No. 1:06cv266, 2011 WL 4914963, at
6
*3 n.2 (S.D. Ohio Sept. 9, 2011) (suggesting a preference for “affidavits
from other attorneys who practice in federal court,” “publications that
discuss the prevailing market rate,” or “an affidavit from counsel setting
forth . . . her normal hourly rate”).
The Court also concludes that the hours itemized by plaintiff’s
counsel are reasonable.
Notably, plaintiff’s counsel did not include time
in connection with either plaintiff’s or the Commissioner’s requests for
extensions of time.
See Plaintiff’s Motion, Exhibit D, at pp. 1-3.
Similarly, plaintiff’s counsel did not itemize time spent reviewing emails
from the Court’s electronic docketing system, even though billing for such
activities has been upheld in the past.
See Drain v. Astrue, No.
2:10-cv-0025, 2011 WL 63513, at *3 (S.D. Ohio Jan. 6, 2011).
Additionally,
the administrative record in this case exceeds 850 pages and there is no
indication that the time billed is improper or excessive.
Based on the
foregoing, the Court concludes that the hours itemized by plaintiff’s
counsel are reasonable.
Finally, plaintiff requests that any fees awarded be payable directly
to her attorney, pursuant to her affidavit and assignment of EAJA fees.
See Plaintiff’s Motion, p. 1, Exhibit A.
The United States Supreme Court
has determined that fees awarded to a prevailing party under the EAJA belong
to the litigant, not to his or her attorney.
2521, 2527 (2010).
Astrue v. Ratliff, 130 S.Ct.
Fees can be directly awarded to an attorney, however,
where the litigant does not owe a debt to the government and assigns the
right to receive fees to the attorney.
7
Id. at 2529.
In the case presently before the Court, it is unclear whether
plaintiff owes a debt to the government.
Accordingly, the Court finds
that, under Ratliff, the proper course is to award fees directly to
plaintiff and remain silent as to the ultimate disposition of those fees.
See Oliver v. Comm’r of Soc. Sec., No. 2:11-cv-447, 2013 WL 65429 (S.D.
Ohio Jan. 4, 2013).
For the foregoing reasons, Plaintiff’s Motion, Doc. No. 24, is GRANTED
in part.
Plaintiff is AWARDED an attorney fee under the Equal Access to
Justice Act in the amount of $4,233.42.
Date: April 25, 2013
________s/James L. Graham___
James L. Graham
United States District Judge
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