United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
LIOI UNITED STATES DISTRICT JUDGE.
the Court is the motion of plaintiff Roberto Lillo
(“Lillo” or “plaintiff”) for an award
of attorney fees pursuant to the Equal Access to Justice Act,
28 U.S.C. § 2412(d) (“EAJA”). (Doc. No. 21
[“Mot.”].) The Acting Commissioner of Social
Security (“Commissioner” or
“defendant”) filed a brief in opposition (Doc.
No. 22 [“Opp'n”]) and plaintiff filed a reply
(styled as a “response”) (Doc. No. 23
[“Reply”]). For the reasons discussed herein, the
motion is granted.
filed the instant action on July 21, 2016, seeking review of
the Commissioner's denial of his application for
supplemental security income (“SSI”) under Title
XVI of the Social Security Act, 42 U.S.C. §§
416(i), 423, 1381, et. seq. (Doc. No. 1.) On June
29, 2017, the assigned magistrate judge issued a Report and
Recommendation (Doc. No. 17 [“R&R”]) that
“the decision of the Commissioner as a whole is not
supported by substantial evidence[, ]” and “fails
to articulate good reasons, supported by evidence in the case
record, for not giving greater weight to treating
psychiatrist Dr. Hill's opinions.” (Id. at
718.) On July 17, 2017, the Court adopted the
R&R's unopposed recommendation that the case be
remanded “for a fuller explanation of the weight given
to the opinions of the treating psychiatrist . . . and the
reasons for such determination.” (Id.; see
also Order of Remand, Doc. No. 19; Judgment Entry, Doc.
moves for attorney fees in the amount of $7, 420.63,
representing 40.5 hours of service provided by Attorney
Louise Mosher (28.75 hours at an hourly rate of $182.50 and
11.75 hours at an hourly rate of $185.00). He also supplies a
copy of the fee agreement with his attorney, assigning any
EAJA award to the attorney. The Commissioner opposes the
request, arguing that the government's position during
the administrative proceedings was substantially justified.
EAJA requires the government to pay a prevailing social
security plaintiff's attorney's fees and costs
“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); Pierce v. Underwood, 487 U.S. 552,
556, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988); Howard v.
Barnhart, 376 F.3d 551, 553 (6th Cir. 2004).
opposition to the motion includes no challenge to
plaintiff's prevailing party status, or to the number of
hours or the hourly rate(s), or to the total fees sought.
Defendant's only argument is that fees should not be
awarded because the government's position was
“substantially justified, ” which requires a
showing that it was “justified, both in fact and in
law, to a degree that could satisfy a reasonable
person.” Jankovich v. Bowen, 868 F.2d 867, 869
(6th Cir. 1989) (citations omitted). A position can be
justified “even though it is not correct, and …
can be substantially (i.e., for the most part) justified if a
reasonable person could think it correct, that is, if it has
a reasonable basis in law and fact.” Pierce,
487 U.S. at 566, n.2. “Remand ‘alone, ' which
occurs when the ALJ's decision was not ‘supported
by substantial evidence, ' does not necessarily require
an award of fees because the remand standard is not the
equivalent of a finding that the government's position
was not substantially justified.” Glenn v.
Comm'r of Soc. Sec., 763 F.3d 494, 498 (6th Cir.
2014) (citing Couch v. Sec'y of HHS, 749 F.2d
359, 360 (6th Cir. 1984)). Defendant bears the burden of
establishing that her position was substantially justified.
Irizarry v. Colvin, No. 1:13-cv-02161, 2015 WL
3755978, at *3 (N.D. Ohio June 16, 2015) (citations omitted).
“Plaintiff is presumptively entitled to attorney's
fees unless the government can meet its burden[.]”
Olive v. Comm'r of Soc. Sec., 534 F.Supp.2d 756,
758 (N.D. Ohio 2008).
argues that, “although the Court ultimately disagreed
with the ALJ's rationale for assigning less weight to the
treating psychiatrist's opinion, there was a logical
nexus between the ALJ's findings and conclusions.”
(Opp'n at 742.) In support, defendant argues that there
were “many more [record] references to activities that
contradicted the limitations assessed by Dr. Hill”
than were included by the ALJ. (Id.) Defendant's
argument, however, begs the question --given all those
“many . . . references, ” why did the ALJ fail to
include them when articulating reasons for the ultimate
decision to discount the treating psychiatrist's opinion?
The ALJ had a duty to do so, in order to permit a meaningful
review of the ALJ's application of the treating physician
rule. Johnson-Hunt v. Comm'r of Soc. Sec., 500
F. App'x 411, 419 (6th Cir. 2012) (“the treating
physician rule is a substantial right that ‘provides
claimants with an important procedural safeguard, ' and
restricts the SSA's ability to ‘relax or disregard
the rule in an ad hoc fashion.'” (quoting Bowen
v. Comm'r of Soc. Sec., 478 F.3d 742, 747 (6th Cir.
2007)). The Commissioner was, in effect, asking this Court to
validate the denial of benefits without following her own
rules for explaining such denial. The failure in that regard
resulted in a decision that was not only unsupported by
substantial evidence but was also not “substantially
justified” within the meaning of the EAJA. The Court,
therefore, concludes that plaintiff is entitled to an EAJA
already noted, defendant does not challenge the hours, the
rate(s), or the total amount of fees sought. The Court,
nonetheless, has the duty to examine the request for
reasonableness. 28 U.S.C. § 2412(d)(2)(a) (“fees
and other expenses” includes, inter alia,
“reasonable attorney fees”).
submitted by plaintiff's counsel shows a total of 40.5
hours of legal services performed by counsel between October
26, 2016 and March 14, 2017, including the typical legal
services of analyzing the ALJ's decision, reviewing the
administrative record, and drafting briefs and other required
filings. The Court finds the nature of these legal services
to be reasonable. As to the number of hours expended, the
Court notes that 19.5 of these hours were devoted to drafting
the statement of facts and briefing the three issues
ultimately presented to the Court. Although, for an attorney
with plaintiff's counsel's experience,  this seems
slightly excessive, the Court has examined the opening merits
brief, which was 25 pages long, and is satisfied that the
hours spent were justified, especially given the importance
of that brief in setting forth plaintiff's challenges to
the Commissioner's decision.
EAJA provides that the amount of an attorney fee award shall
be based upon prevailing market rates, but shall not exceed
$125 per hour, unless the Court determines that the cost of
living or special factors justifies a higher fee. 28 U.S.C.
§ 2412(d)(2)(A)(ii). The two billing rates of counsel in
this case are an upward departure from the $125.00 statutory
cap. It is common, although not required, to adjust the
statutory hourly rate to account for cost of living increases
since 1996, the time when that rate was last capped. See
Gisbrecht v. Barnhart, 535 U.S. 789, 796 n.4, 122 S.Ct.
1817, 152 L.Ed.2d 996 (2002) (“A higher fee may be
awarded if ‘the court determines that an increase in
the cost of living . . . justifies a higher fee.”)
(quoting 28 U.S.C. § 2412(d)(2)(A)(ii)); see also
Hutchinson v. Colvin, No. 1:15-cv-1144, 2016 WL 6777804,
at *2 (N.D. Ohio Nov. 16, 2016) (examining the
appropriateness of a cost of living increase). The Court
concludes that the hourly rates of $182.50 and $185.00 are
both reasonable and adequately reflective of “the
prevailing market rates for the kind and quality of services
furnished[.]” 28 U.S.C. § 2412(d)(2)(A).
Therefore, the Court will award $7, 420.63 (28.75 hours at
$182.50/hour and 11.75 hours at $185.00/hour).
when EAJA fees are granted, payment is typically made to the
plaintiff, not to the attorney, here plaintiff has supplied
an assignment of EAJA fees that permits payment to the
attorney, with proper setoffs in place. (See Doc.
is directed to determine, within 30 days from the date of
this order, whether plaintiff owes any pre-existing debt to
the United States, to offset any such debt against the award
granted herein, and to generate an invoice for the balance
that directs the Department of Treasury to pay that balance
to plaintiff's attorney pursuant to the attorney's
fee assignment duly signed by plaintiff and her counsel.
Astrue v. Ratliff, 560 U.S. 586, 130 S.Ct. 2521, 177
L.Ed.2d 91 (2010) (holding that EAJA fees are payable to the
plaintiff and are subject to setoff if the plaintiff has
outstanding federal debts and recognizing that the payment