Montgomery v. Commissioner of Social Security

Filing 16

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Plaintiff's Motion for Award of Attorney Fees and Costs Pursuant to the Equal Access to Justice Act, (Doc. 15), be granted to the extent that Plaintiff is entitled to an award of EAJA fees in the amount of $2,093.75. Objections to R&R due by 6/25/2012. Signed by Magistrate Judge Michael R Merz on 6/7/2012. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

DONALD J. MONTGOMERY,

:
Case No. 3:11-cv-256

Plaintiff,
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz
-vsMICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

:

REPORT AND RECOMMENDATIONS
This case is before the Court on Plaintiff’s Motion for Award of Attorney Fees
and Costs Pursuant to the Equal Access to Justice Act. (Doc. 15). The Commissioner has not
filed an opposition to Plaintiff’s Motion and the time within which to do so has passed.
S.D.Ohio Civ.R. 7.2(a)(2).
Pursuant to the EAJA, Plaintiff seeks an award of attorney fees in the amount of
$2,931.25. (Doc. 15). In support of the Motion, Plaintiff=s counsel has provided an itemization
of time which reveals that counsel spent 16.75 hours representing his client in this matter.
PageID 625-26.

In addition, Plaintiff has submitted counsel’s affidavit which describes

counsel’s background and experience, identifies his non-contingent case hourly billing rate as
$300, and which describes counsel’s time in the present matter as necessary to provide Plaintiff
with competent representation. PageID 628-29. Finally, Plaintiff has submitted a copy of the
Bureau of Labor Statistics’ all items Consumer Price Index (CPI) through May, 2012, PageID
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630, as well as his own affidavit. PageID 627. Plaintiff does not seek an award for costs and
expenses. Id.
An award of fees may be made under the EAJA in a social security disability
action such as the present case. Jankovich v. Bowen, 868 F.2d 867 (6th Cir. 1989). The EAJA
provides in relevant part:
Except as otherwise specifically provided by statute, 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 (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).
Thus, eligibility for a fee award in any civil action requires: (1) that the claimant
be a Aprevailing party@; (2) that the Government=s position was not Asubstantially justified@; (3)
that no Aspecial circumstances make an award unjust@; and (4) pursuant to 28 U.S.C.
'2412(d)(1)(B), any fee application be presented to the court within 30 days of final judgment in
the action and be supported by an itemized statement. Jones v. Commissioner, 496 U.S. 154, 158
(1990). EAJA fees are payable to the litigant. Astrue v. Ratliff, 560 U.S. ___, ___, 130 S.Ct.
2521, 2524 (2010).
A review of the procedural history of this matter is appropriate. Plaintiff filed his
Complaint in this matter on July 22, 2011, seeking judicial review of the Commissioner=s
decision denying his applications for Social Security Disability (SSD) and Supplemental
Security Income (SSI). (Doc. 2). On April 4, 2012, I issued a Report and Recommendations
recommending that the Commissioner=s decision be reversed and the matter be remanded for
further administrative proceedings. (Doc. 12). Neither party filed Objections to my Report and
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on April 24, 2012, District Judge Walter Herbert Rice adopted my Report in its entirety and
remanded the case to the Commissioner for further administrative proceedings. (Doc. 13). On
that same date, the Clerk entered judgment accordingly. (Doc. 14). This Motion followed.
First, this Court notes that the Commissioner did not file Objections to my Report
nor has he opposed the present Motion. Therefore, this Court concludes that for purposes of the
present Motion, the Commissioners position in the underlying litigation was not substantially
justified.
The Court turns to the reasonableness of the requested fee.
The EAJA permits an award of reasonable attorney fees and expenses. 28 U.S.C.
' 2412(d)(2)(A). The plaintiff has the burden of proving that the fees requested under the EAJA
are in fact reasonable. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The court should
exclude time that is excessive, redundant, or inadequately documented. Id. at 433-34. Time
spent on secretarial or clerical tasks is not Areasonable@ if such tasks are performed by an
attorney. See Missouri v. Jenkins, 429 U.S. 274, 288 n.10 (1989). Fees associated with training
attorneys are not compensable under the EAJA when the fees were not incurred as a result of any
actions or positions of the government in the litigation. See Hyatt v. Barnhart, 315 F.3d 239, 255
(4th Cir. 2002); Richards v. Secretary of Health and Human Services, 884 F. Supp. 256, 260
(N.D.Ohio 1995).
The Court has carefully reviewed counsel=s affidavit and concludes that the
number hours, 16.75, is reasonable. The Court specifically notes that Plaintiff has not requested
compensation for clerical time and that ten hours of attorney time to review a transcript that
contains over six hundred pages and prepare a twenty-page Statement of Issues is certainly
reasonable.

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Accordingly, the Court turns to the amount of the requested fee.
The EAJA originally provided that attorney fees be limited to a rate of $75.00 an
hour Aunless 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 proceeding involved, justifies a higher fee@.
28 U.S.C. '2412(d)(2)(A). On March 29, 1996, Congress increased the rate payable for EAJA
fees to $125.00 per hour for civil actions filed after March 29, 1996. The Contract with America
Advancement Act of 1996, Pub.L. 104-121, 110 Stat. 852, 853 (Mar. 29, 1996).
The Sixth Circuit has recognized that the EAJA allows for a cost-of-living
adjustment. Begley v. Secretary of Health and Human Services, 966 F.2d 196, 199 (6th Cir.
1992). In addition, while recognizing that although adjustments in EAJA fees due to increases in
the Consumer Price Index are sometimes seen as essentially perfunctory or even mandatory, the
Sixth Circuit leaves the matter to the sound discretion of the district court.

Id. (citations

omitted). The 1996 EAJA language continues to provide for such an increase. 28 U.S.C.
'2412(d)(2)(A).
In recommending denial of a motion for relief from judgment under Fed.R.Civ.P.
60(b)(6), I recently noted:
In Douglas [v. Commissioner, No. 3:10-cv-188, 2012 WL 931100
(S.D.Ohio Mar. 19, 2012)], Judge Rice rejected a recommendation
that the Court grant the plaintiff’s motion for EAJA fees in an
amount that represented an hourly rate of $171.81. … Judge Rice
noted that in support of the fee motion, the plaintiff’s counsel
submitted her time sheets along with the United States Department
of Labor’s Consumer Price Index showing yearly cost-of-living
increases from 1996, when the hourly $125.00 EAJA statutory cap
was set, through 2010. … Relying on Bryant v. Commissioner of
Social Security, 578 F.3d 443 (6th Cir. 2009), Judge Rice
determined that the plaintiff had failed to satisfy his burden of
proving that a rate increase was justified. … Specifically, Judge
Rice noted that Bryant provides that the plaintiff must produce
evidence, in addition to the attorney’s own affidavits, that the
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requested hourly rates are “in line with those prevailing in the
community for similar services by lawyers of reasonably
comparable skill, experience, and reputation.” … citing Bryant,
578 F.3d at 450, quoting Bloom v. Stenson, 465 U.S. 886, 895 n.11
… (1984). Judge Rice acknowledged that he “and his Dayton
colleagues have repeatedly found that the Consumer Price Index
justifies an increase in the statutory hourly rate, and have
repeatedly found that hourly rates of $171…were reasonable.” …
However, Judge Rice noted that in those cases, the Commissioner
did not challenge the hourly rate which the plaintiffs had requested
but that in the case before him the Commissioner had challenged
the sufficiency of evidence presented in support of the plaintiff’s
request for an hourly rate above the statutory cap. … (emphasis
supplied). Judge Rice noted further that when presented with
challenges similar to the one Douglas presented, many of [his]
colleagues in this district have found that plaintiffs who submitted
only the Consumer Price Index failed to meet their burden of proof
and were therefore limited to the statutory cap of $125 per hour.
… (citation omitted).
Mullins v. Astrue, No. C-3:10-cv-404, 2012 WL 1537626 (S.D. Ohio Apr. 30, 2012)(Merz,
M.J.), Report and Recommendations adopted, 2012 WL 1854738 (S.D. Ohio May 21,
2012)(Rose, J.). Although I recommended denying the Commissioner’s motion in Mullins, I did
acknowledge that, “[t]he issue of EAJA fees and a plaintiff’s burden to prove entitlement to more
than the statutory rate is an issue deserving of general reconsideration in light of Douglas … .”
2012 WL 1537626 at *2.
This Spring, Magistrate Judge Sharon Ovington has on several occasions
addressed the issue of EAJA fees and a plaintiff’s burden to prove entitlement to more than the
statutory rate of $125 an hour.
In May v. Astrue, No. 3:09-cv-090, 2012 WL 1203595 (S.D. Ohio Apr. 10, 2012),
Report and Recommendations adopted, 2012 WL 1564348 (S.D. Ohio May 2, 2012)(Rice, J.),
the plaintiff requested EAJA fees in an amount equal to an hourly rate of $159.38 and the
Commissioner did not object to that hourly rate. However, Judge Ovington raised sua sponte the

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issue of the plaintiff’s burden of producing appropriate evidence to support the requested
increase of the statutory hourly fee of $125. Judge Ovington quoted Bryant, 578 F.3d at 450,
and determined that the plaintiff, who had submitted only counsel’s time records, had not met his
burden of “produc[ing] 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.” May, 2012 WL 1203595.
Judge Ovington recommended that the plaintiff’s motion for EAJA fees be granted to the extent
that he be awarded fees in an amount equal to an hourly rate of $125.

Id.

Judge Rice

subsequently adopted Judge Ovington’s Recommendations. 2012 WL 1564348 (May 2, 2012).
In Mader v. Astrue, No. 3:10-cv-263, 2012 WL 1440360 (S.D. Ohio Apr. 16,
2012), Report and Recommendations adopted, 2012 WL 1758694 (S.D. Ohio May 16,
2012)(Rice, J.), the plaintiff requested EAJA fees in an amount that equaled an hourly rate of
$172.72, and supported his request with only counsel’s time records. The Commissioner did not
object to the hourly rate. Judge Ovington again raised sua sponte the issue of the plaintiff’s
burden of producing appropriate evidence to support the requested increase of the statutory
hourly fee of $125, and again determined that the plaintiff had not met his burden under Bryant,
supra, and Douglas, supra. Judge Ovington recommended that the plaintiff’s request be granted
to the extent that he be awarded EAJA fees in an amount that equaled an hourly rate of $125.
2012 WL 1564348.

Judge Rice adopted Judge Ovington’s Recommendations.

2012 WL

1758694.
Similar to May and Mader, in Mitchell v. Astrue, No. 3:09-cv-276, 2012 WL
1854562 (S.D. Ohio May 21, 2012) and Bunger v. Astrue, No. 3-08-cv-275, 2012 WL 1854521
(S.D. Ohio May 21, 2012), the plaintiffs requested EAJA fees in amounts which equaled

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amounts above the statutory hourly rate of $125. The Commissioner did not object to the hourly
rates in either Mitchell or Bunger. However, Judge Ovington raised sua sponte the issue of the
requested hourly rates and found that the respective plaintiffs had failed to meet the burden of
producing 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 as required by Bryant, supra, and
Douglas, supra.1
I am persuaded by Judge Ovington’s analyses in the matters cited supra.
Specifically, this Court concludes that a successful Social Security plaintiff who seeks EAJA
fees has the burden to prove entitlement to more than the statutory hourly rate of $125. The
Court also concludes that when seeking EAJA fees in an amount that equals more than the
statutory hourly rate of $125, the litigant must produce evidence, in addition to the attorney’s
own affidavits, that the requested hourly rates are “in line with those prevailing in the community
for similar services by lawyers of reasonably comparable skill, experience, and reputation.”
Bryant, 578 F.3d at 450. Finally, the Court concludes that it will, on a case-by-case basis, make
a determination of the appropriateness of the requested hourly fee and whether the requesting
litigant has satisfied the Bryant requirement regardless of whether the Commissioner specifically
objects to the amount of the requested hourly fee. With these principles in mind, the Court turns
to the present Motion.
As noted above, Plaintiff seeks an award of EAJA fees in the amount of
$2,931,25 for 16.75 attorney hours expended pursuing this matter. That fee equals an hourly fee
of $175 which, of course, is above the statutory hourly rate of $125. Although Plaintiff has

1

As of the date of this Report, neither party has filed Objections to Judge Ovington’s Reports in Mitchell or
Bunger nor has Judge Rice, the district judge assigned to both cases, adopted either Report.
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submitted counsel’s time records and affidavit as well as a copy of the CPI, Plaintiff has not
produced any evidence, in addition to the attorney’s own affidavits, that the requested hourly
rates are “in line with those prevailing in the community for similar services by lawyers of
reasonably comparable skill, experience, and reputation.” Bryant, 578 F.3d at 450. Accordingly,
Plaintiff has failed to carry his burden under Bryant and Douglas and therefore he is limited to a
fee in an amount that equals the statutory hourly rate of $125, or, a fee of $2,093.75 ($125 x
16.75 hours).
It is therefore recommended that the Plaintiff’s Motion for Award of Attorney
Fees and Costs Pursuant to the Equal Access to Justice Act, (Doc. 15), be granted to the extent
that Plaintiff is entitled to an award of EAJA fees in the amount of $2,093.75.

s/Michael R. Merz

June 7, 2012

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed.R.Civ.P. 72(b), any party may serve and file specific, written objections to
the proposed findings and recommendations within fourteen days after being served with this
Report and Recommendations. Pursuant to Fed.R.Civ.P. 6(e), this period is automatically
extended to seventeen days because this Report is being served by one of the methods of service
listed in Fed.R.Civ.P. 5(b)(2)(B), (C), or (D) and may be extended further by the Court on timely
motion for an extension. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See, United States v. Walters, 638
F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

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