Baily v. Commissioner Social Security

Filing 29

REPORT AND RECOMMENDATIONS. It is RECOMMENDED that Plaintiff's Motion for Attorney Fees, Doc. No. 28 , be GRANTED. Objections to R&R due by 11/13/2014. Signed by Magistrate Judge Norah McCann King on 10/27/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JAMES C. BAILY,
Plaintiff,
vs.

Civil Action 2:13-cv-344
Judge Marbley
Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
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 May 30,

2014, this Court reversed the decision of the Commissioner and remanded
the action to the Commissioner for further proceedings.
24.

Order, Doc. No.

Final judgment pursuant to Sentence 4 of 42 U.S.C. § 405(g) was entered

that same date.

Judgment, Doc. No. 25.

This matter is now before the Court

for consideration of plaintiff’s Application for Attorney Fees Under the
the Equal Access to Justice Act (“EAJA”) (“Plaintiff’s Motion”), Doc. No.
28.

Plaintiff specifically seeks an award of $3,243.75 in attorney’s fees

for 17.30 hours of work compensated at an average hourly rate of $187.50
per hour and expenses of $12.00.

Plaintiff’s Motion, p. 3, Exhibit A.

Commissioner has not filed a response to Plaintiff’s Motion.

The

For the

reasons that follow, it is RECOMMENDED that Plaintiff’s Motion be GRANTED.
II.

STANDARD
The Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, authorizes

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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 May 30, 2014.
Order, Doc. No. 24; Judgment, Doc. No. 25.

See

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); Fugate v. Comm’r of Soc. Sec., No.
3:11-cv-390, 2013 WL 8229840, at *1 (S.D. Ohio May 24, 2013) (“̔Final
judgment’ occurs at the end of the sixty-day period to file an appeal under
Fed. R.App. P. 4(a)(1)(B).”) (citing Peters v. Sec'y of Health & Human
Servs., 934 F.2d 693, 694 (6th Cir. 1991)).
This Court reversed the decision of the Commissioner and remanded the

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matter for further consideration of Listing 12.05C because there was
insufficient evidence in the record to support the administrative law
judge’s finding that plaintiff’s IQ scores were representative of a
learning disability rather than an intellectual disability.

See Order,

Doc. No. 24; Report and Recommendation, Doc. No. 23, pp. 15-16.

The

Commissioner does not argue that its position was substantially justified.
The Court therefore concludes that the position of the Commissioner was
not substantially justified and that an award of fees under the EAJA is
warranted.

See United States v. True, 250 F.3d 410, 419 n.7 (6th Cir. 2001)

(“[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 $3,243.75 for 17.30 hours of work compensated at a rate of
$187.50 per hour.

Plaintiff’s Motion, p. 3, Exhibit A.

An award under the EAJA must be reasonable:
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 and Human Servs., 781 F.2d 545,

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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 a court has examined the prevailing market rate, the court 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 will
not suffice.

Bryant, 578 F.3d at 450.

In the case presently before the Court, plaintiff has submitted the
declaration of his attorney, Gregory R. Mitchell, and an exhibit computing
the cost of living increase for EAJA awards since March 1996.
Motion, Exhibits A, C.

Plaintiff’s

The declaration of plaintiff’s attorney represents

that he is a partner at a law firm in Columbus, Ohio, with a normal hourly
rate of $200.00.

Plaintiff’s Motion, Exhibit A.

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Courts in this Circuit

are “more inclined to grant [a] request for an increase in the hourly rate”
when the plaintiff submits evidence, beyond his attorneys’ own affidavit,
“to support what the prevailing market rate is in the . . . area, such as
affidavits from other attorneys who practice in federal court and/or
publications that discuss the prevailing market rate.”

See Delver v.

Astrue, No. 1:06cv266, 2011 U.S. Dist. LEXIS 119591, at *7-8 (S.D. Ohio
Sept. 9, 2011). See also Ball v. Astrue, No. 1:09-cv-684, 2011 U.S. Dist.
LEXIS 119683, at *11 (S.D. Ohio Sept. 21, 2011) (limiting the hourly fee
to the statutory rate of $125.00 where plaintiff failed to submit sufficient
evidence

supporting

the

requested

increase);

Wise

v.

Astrue,

No.

2:09-cv-355, 2010 U.S. Dist. LEXIS 133675 (S.D. Ohio Dec. 7, 2010); Harris
v. Astrue, No. 3:09cv92, 2010 U.S. Dist. LEXIS 109981 (S.D. Ohio Sept. 30,
2010).

Although plaintiff has not presented evidence documenting the

prevailing market rate for attorneys in Columbus, Ohio, the Court takes
judicial notice of its own records that attorneys have routinely been
awarded fees under the EAJA in excess of the $125.00 statutory cap based
on cost of living increases.

See, e.g., Simpson v. Comm’r of Soc. Sec.,

No. 2:13-cv-164, 2014 WL 794753 (S.D. Ohio Feb. 27, 2014).

The Court also

notes that plaintiff’s counsel has lengthy experience in this Court
representing plaintiffs in Social Security disability appeals, and that,
in the last six months, the Commissioner has stipulated to an award of EAJA
fees in an amount higher than the fees sought here in at least three cases
involving plaintiff’s counsel.

See Colmer v. Comm’r of Soc. Sec., No.

2:13-cv-564 (S.D. Ohio); France v. Comm’r of Soc. Sec., No. 2:13-cv-421
(S.D. Ohio); Kershner v. Comm’r of Soc. Sec., No. s:13-cv-65 (S.D. Ohio).

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Although the Court would prefer that plaintiff submit evidence of his
counsel’s qualifications and the prevailing hourly rate for attorneys with
comparable skill, experience, and reputation, the Court is satisfied here
that counsel’s hourly rates are, indeed, in line with the prevailing rates
in the community.
Plaintiff also seeks expenses of $12.00 for copying plaintiff’s
Statement of Errors and for postage and copying Plaintiff’s Motion.
Plaintiff’s Motion, Exhibit B.

Plaintiff’s unopposed request in this

regard is likewise meritorious.
For the foregoing reasons, it is RECOMMENDED that Plaintiff’s Motion,
Doc. No. 28, be GRANTED.

It is SPECIFICALLY RECOMMENDED that plaintiff

be awarded an attorney fee under the Equal Access to Justice Act in the
total amount of $3,243.75, plus $12.00 in expenses, for a total award of
$3,255.75.
If any party seeks review by the District Judge of this Report and
Recommendation, that party may, within fourteen (14) days, file and serve
on all parties objections to the Report and Recommendation, specifically
designating this Report and Recommendation, and the part thereof in
question, as well as the basis for objection thereto.
636(b)(1); Fed. R. Civ. P. 72(b).

28 U.S.C. §

Response to objections must be filed

within fourteen (14) days after being served with a copy thereof.

Fed.

R. Civ. P. 72(b).
The parties are specifically advised that failure to object to the
Report and Recommendation will result in a waiver of the right to de novo
review by the District Judge and of the right to appeal the decision of

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the District Court adopting the Report and Recommendation. See Thomas v.
Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of Teachers, Local 231
etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).

October 27, 2014

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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