Robinson v. Commissioner of Social Security

Filing 27

REPORT AND RECOMMENDATIONS re 26 MOTION for Attorney Fees filed by Michelle Y Robinson. It is RECOMMENDED that Plaintiff's Motion be granted. Objections to R&R due by 2/17/2015. Signed by Magistrate Judge Norah McCann King on 1/28/2015. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHELLE Y. ROBINSON,
Plaintiff,
vs.

Civil Action 2:13-CV-1055
Judge Sargus
Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
This was an action instituted under the provisions of 42 U.S.C. §
405(g) for review of the decision of the Commissioner of Social Security
denying plaintiff’s applications for disability insurance benefits and
supplement security income.

On December 2, 2014, the decision of the

Commissioner was reversed and the matter was remanded to the Commissioner,
pursuant to Sentence 4 of 42 U.S.C. § 405(g), for further consideration
of the opinion of plaintiff’s treating neurosurgeon.
Judgment, ECF 25.

Order, ECF 23;

This matter is now before the Court on plaintiff’s motion

for attorney fees pursuant to the Equal Access to Justice Act, 28 U.S.C.
§ 2412. Application for Attorney Fees under the Equal Access to Justice
Act, ECF 26 (“Plaintiff’s Motion”).

There has been no response to

Plaintiff’s Motion.
The Equal Access to Justice Act (“EAJA”), 28 U.S.C. §2412, provides,
in pertinent part, that a court may award to a prevailing party other than
the United States reasonable attorneys' fees and expenses "unless the court
finds that the position of the United States was substantially justified
or that special circumstances make an award unjust."

The party seeking

an award of such fees and expenses is required to submit a fee application

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to the court within 30 days of the date that the judgment became final and
non-appealable. The application must demonstrate that the party is a
prevailing party and is eligible to receive a fee award. It must also
document the amount sought, including an itemized statement from the
attorney or attorneys involved, and must allege that the position of the
United States was not substantially justified. The court is then required
to determine, on the basis of the record, whether the position of the United
States was substantially justified. 28 U.S.C. § 2412(d)(1)(B). Attorneys'
fees are limited to the rate of $125.00 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).
Once a petition has been filed alleging that the position of the United
States was not substantially justified, the United States has the burden
of demonstrating such justification. See DeLong v. Comm’r of Soc. Sec.,
748 F.3d 723, 725-26 (6th Cir. 2014). The question of whether the United
States’ position is substantially justified is determined based upon the
standards set forth in Pierce v. Underwood, 487 U.S. 552 (1988). In Pierce,
the Court concluded that the phrase "substantially justified" as used in
the EAJA means justified "to a degree that could satisfy a reasonable
person." Pierce, supra, at 565. As the Court noted, that test "is no
different from the 'reasonable basis both in law and fact' formulation
adopted by the Ninth Circuit and the vast majority of other Courts of Appeals
that have addressed this issue." Id., citing, inter alia, Trident Marine
Construction, Inc. v. District Engineer, 766 F.2d 974 (6th Cir. 1985). An
agency decision that is not supported by substantial evidence may still
be one that has a reasonable basis in law and fact. Jankovich v. Bowen,

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868 F.2d 867 (6th Cir. 1989). Consequently, this Court is required to apply
the "reasonable basis in law and fact" test set forth in Trident Marine
Construction to this application for attorneys’ fees.
Plaintiff secured final judgment reversing the decision of the
Commissioner and is therefore a “prevailing” party within the meaning of
the EAJA.

Furthermore, the motion for fees was filed within thirty (30)

days after final judgment was entered. Moreover, the United States has not
carried its burden of demonstrating that its position was substantially
justified. Plaintiff is therefore entitled to an award of attorney fees.
Having determined that an attorney fee 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 $ 3,162.88 and
itemizes 17.15 hours of attorney’s work in connection with the case before
this Court. The amount sought reflects an hourly rate of $182.50 for the
3.95 hours of work performed in 2013 and an hourly rate of $185.00 for the
13.20 hours of work performed in 2014.
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 & 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

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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
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 her attorney, Paul F. Woodrow, a copy of The Economics of Law
Practice in Ohio 2013, and awards of attorney fees in other cases in support
of the proposed hourly rates.
attorney is $200 per hour.

The normal hourly rate of plaintiff’s

See Affidavit of Plaintiff’s Attorney, Paul

F. Woodrow, attached to Plaintiff’s Motion as Exhibit 1, at p. 2.
Additionally, plaintiff has provided evidence that the median billing rate
in the Downtown Columbus area, where plaintiff’s attorney practices, is
$275 per hour, the median billing rate for Social Security attorneys in

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Ohio is $250 per hour, and the median billing rate in Ohio for attorneys
with 16 years’ experience is $200 per hour.
Practice in Ohio in 2013.

See The Economics of Law

Under the circumstances, the Court concludes

that plaintiff has provided satisfactory evidence that the requested
average hourly rates are 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

*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
attorney 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. 8.

The United States Supreme Court has

determined that fees awarded to a prevailing party under the EAJA belong
to the litigant, not to her attorney.
2527 (2010).

Astrue v. Ratliff, 130 S.Ct. 2521,

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.

Id. at 2529.

In the case presently before the Court, it is unclear whether
plaintiff owes a debt to the government.

Accordingly, the Court concludes

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).

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It is therefore RECOMMENDED that Plaintiff’s Motion, ECF 26, be
granted.

It is SPECIFICALLY RECOMMENDED that plaintiff be awarded an

attorney fee pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412,
in the total amount of $ 3,162.88.
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. 28 U.S.C. §636(b)(1);
F.R. Civ. P. 72(b). Response to objections must be filed within fourteen
(14) days after being served with a copy thereof. F.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
the District Court adopting the Report and Recommendation. See Thomas v.
Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of Teachers, Local
231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).

Date: January 28, 2015

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

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