Mattox v. Commissioner of Social Security

Filing 18

REPORT AND RECOMMENDATION that 17 MOTION for Attorney Fees Under the Equal Access to Justice Act be granted. Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 9/23/2015. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Nicholas R. Mattox,

:

Plaintiff,

:

v.

:
:

Commissioner of Social Security,

Case No. 2:14-cv-1350
JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp

:
Defendant.

REPORT AND RECOMMENDATION
In an order filed on July 7, 2015, this case was remanded to
the Commissioner pursuant to 42 U.S.C. §405(g), sentence four.
On August 4, 2015, Plaintiff filed a motion for attorneys’ fees
under the Equal Access to Justice Act, 28 U.S.C. §2412.

Despite

the passage of time for filing a responsive memorandum, the
Commissioner has not responded.
It is the Commissioner’s burden, in response to a motion for
fees under the EAJA, to demonstrate that the Commissioner’s
litigation position was substantially justified.

See Miller v.

United States, 831 F. Supp. 1347, 1351 (M.D. Tenn. 1993) ("The
burden lies with the government to demonstrate that its position
was substantially justified ...."); Weber v. Weinberger, 651
F.Supp. 1379, 1388 (E.D. Mich. 1987) ("with respect to an
application for attorney's fees the Government has the burden of
showing that its position was substantially justified").

In the

absence of an opposing memorandum, the Commissioner cannot
satisfy that burden.

See, e.g., Libas, Ltd. v. United States,

314 F.3d 1362, 1366 (Fed. Cir. 2003)(“when the government fails
to advance any reasoning showing its position was substantially
justified, the court ... may grant the motion by relying on the
government's failure to timely submit any evidence or explanation
to carry its burden of proving its position was substantially
justified as an admission ...”).

Consequently, the Court must

find that the Commissioner’s litigation position was not
substantially justified.
Once it has been determined that a social security claimant
is entitled to fees under the EAJA, the only remaining questions
are the reasonableness of the hours expended and whether the
hourly rate falls within the statutorily-authorized range.
Plaintiff seeks $2,697.07 for 14.55 hours of work, billed at the
rate of either $185.75 per hour (for work done in 2014) or
$184.28 per hour (for work done in 2015).

The number of hours

expended appears reasonable for cases of this type.
As far as the hourly rate is concerned, the Court of
Appeals, in Bryant v. Comm’r of Social Security, 578 F.3d 443,
350 (6th Cir. 2009), has said that “[i]n requesting an increase
in the hourly-fee rate, Plaintiffs bear the burden of producing
appropriate evidence to support the requested increase.”
must be done through “satisfactory evidence ....”
Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984).

This

Id., quoting
This Court has

often required a prevailing social security plaintiff to submit
such evidence, typically taking the form of an affidavit as to
the attorney’s usual billing rate, the prevailing rate in the
community, and the increase in the cost of living index.

See,

e.g., Oblinger v. Astrue, 2012 WL 3224100 (S.D. Ohio Aug. 6,
2012).
Plaintiff has submitted documentation addressing these
factors.

The Court is satisfied that this documentation meets

the “satisfactory evidence” requirement and that an award at the
requested rates is appropriate.

It is therefore recommended that

Plaintiff’s Application of Attorney Fees under the Equal Access
to Justice Act (EAJA) (Doc. 17) be granted and that Plaintiff be
awarded the sum of $2,697.07 to be paid to counsel for Plaintiff
unless there is an offsetting debt owed to the United States.
PROCEDURE ON OBJECTIONS
-2-

If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).

A judge

of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver 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); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp
United States Magistrate Judge

-3-