Doneff v. Commissioner of Social Security

Filing 18

REPORT AND RECOMMENDATION re 17 MOTION for Attorney Fees under the Equal Access to Justice Act: It is therefore RECOMMENDED that the Court GRANT Plaintiff's Motion for an Award of Attorney's Fees and AWARD Plaintiff attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412, in the amount of $3,149.52. Objections to R&R due by 11/27/2015. Signed by Magistrate Judge Elizabeth Preston Deavers on 11/9/2015. (mas)

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

DONALD E. DONEFF,
Plaintiff,
Civil Action 2:14-cv-313
Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers

v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
This matter is before the Court for consideration of Plaintiff’s Motion for Attorney Fees
Under the Equal Access to Justice Act. (ECF No. 17.) The Commissioner of Social Security did
not file a Memorandum in Opposition. For the reasons that follow, it is RECOMMENDED that
Plaintiff’s Motion be GRANTED. It is further RECOMMENDED that the Court AWARD
Plaintiff attorney’s fees in the amount of $3,149.52.
I.
Plaintiff filed this action on April 3, 2014, seeking review of an adverse decision of the
Commissioner of Social Security (“Commissioner”). (ECF No. 1.) On July 21, 2015, the
Undersigned issued a Report and Recommendation, recommending that the Court reverse the
Commissioner’s nondisability finding and remand this case to the Commissioner under Sentence
Four of 42 U.S.C. § 405(g) based upon the administrative law judge’s failure to properly explain
the reasons supporting his RFC determination. (ECF No. 13.) The Commissioner did not object
to the Report and Recommendation. On September 3, 2015, the Court adopted the Report and
Recommendation and remanded this action to the Commissioner. (ECF No. 14.) On September

29, 2015, Plaintiff filed the instant Motion seeking an award of attorney’s fees under the Equal
Access to Justice Act (“EAJA”). (ECF No. 17.) The Commissioner has not opposed Plaintiff’s
Motion.
II.
Plaintiff seeks an award of attorney’s fees for sixteen and ninety-five-hundredths (16.95)
hours that his counsel worked on this case before this Court. The EAJA provides as follows:
Except as otherwise specifically provided by statute, a court shall award to a
prevailing party other than the United States fees and other expenses, in addition to
any costs awarded pursuant to subsection (a), incurred by that party in any civil
action (other than cases sounding in tort), including proceedings for judicial review
of agency action, brought by or against the United States in any court having
jurisdiction of that 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). Accordingly, a party will generally be entitled to attorney’s fees
under the EAJA when he or she is the prevailing party and the government’s position was not
substantially justified. See Townsend v. Soc. Sec. Admin., 486 F.3d 127, 129–30 (6th Cir. 2007)
(outlining requirements under the EAJA). The Commissioner “bears the burden of
demonstrating that its position was substantially justified.” Pickering v. Mukasey, 306 F. App’x.
246, 247 (6th Cir. 2009).
The EAJA limits recovery of attorney’s fees to $125 per hour unless the court concludes
that the circumstances justify a higher rate:
The amount of fees awarded . . . 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.

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28 U.S.C. § 2412(d)(2)(A). In analyzing the EAJA, the United States Court of Appeals for the
Sixth Circuit has emphasized that the “statutory rate is a ceiling and not a floor.” Chipman v.
Sec’y of Health & Hum. Servs., 781 F.2d 545, 547 (6th Cir. 1986). Furthermore, “[i]n requesting
an increase in the hourly-fee rate, Plaintiffs bear the burden of producing appropriate evidence to
support the requested increase.” Bryant v. Comm’r of Soc. Sec., 578 F.3d 443, 450 (6th Cir.
2009). Accordingly, the Sixth Circuit has held that “Plaintiffs 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 v. Stenson, 465 U.S. 886, 895 n.11
(1984)).
In determining the appropriate rate, the Court may allow for a cost of living adjustment to
justify an award in excess of $125 per hour. Begley v. Sec’y of Health & Hum. Servs., 966 F.2d
196, 199 (6th Cir. 1992). The determination of whether a cost of living increase justifies a fee in
excess of the $125 rate is left to the Court’s discretion. Id. It is not sufficient, however, that a
party submit only the Department of Labor’s Consumer Price Index and argue that inflation
justifies an increase in fees. Bryant, 578 F.3d at 450.
III.
It is undisputed that Plaintiff is the prevailing party. Given that the Commissioner has
not attempted to demonstrate that her position was substantially justified, the sole issue for the
Court is whether Plaintiff has produced evidence sufficient to support the increased rates his
attorney seeks.

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With regard to this issue, Plaintiff seeks an award of attorney’s fees in the amount of
$3,149.52 for sixteen and ninety-five-hundredths (16.95) hours that his counsel worked on this
case before this Court, which calculates to an hourly rate of $185.81. (Pl.’s Mot. 1, ECF No.
17.) Thus, Plaintiff seeks an upward departure from the $125 statutory cap. The Undersigned
concludes that Plaintiff has produced satisfactory evidence that his counsel’s requested rate
comports with prevailing rates in the community. Bryant, 578 F.3d at 450. Plaintiff has
provided an affidavit from his counsel, which reflects that his normal billing rate is $200 per
hour. (Bateson Aff. ¶ 5, ECF No. 17-5.) Plaintiff also submitted a decision from this Court in
which plaintiff’s counsel was awarded $186.18 per hour. (ECF No. 17-6.) Plaintiff also
provided a reference to Department of Labor’s Consumer Price Index demonstrating an increase
in the cost of living. Additionally, Plaintiff has submitted a study the Ohio State Bar Association
sponsored concerning attorney hourly billing rates in 2013. (See ECF No. 17-4.) The study
reflects that the 2013 mean billing rate in the Downtown Columbus area, which is where
Plaintiff’s counsel practices, was $295 per hour. (Id at 39.) The study also shows that the 2013
mean billing rate for attorneys practicing in the specialty area of Social Security was $264 per
hour in 2012, with a median rate of $250 per hour. (Id. at 40.) The Undersigned finds that the
foregoing evidence sufficiently supports Plaintiff’s counsel’s requested rate increase.
IV.
In sum, Plaintiff has provided satisfactory evidence to support his counsel’s requested
rate of approximately $185.81 per hour. It is therefore RECOMMENDED that the Court
GRANT Plaintiff’s Motion for an Award of Attorney’s Fees and AWARD Plaintiff attorney’s
fees under the Equal Access to Justice Act, 28 U.S.C. § 2412, in the amount of $3,149.52. (ECF

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No. 17.) It is further RECOMMENDED that the Court issue no order regarding the direction
such fees must be paid.
V.

PROCEDURE ON OBJECTIONS

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 in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the 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
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).
Date: November 9, 2015

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
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UNITED STATES MAGISTRATE JUDGE

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