United States District Court, N.D. Ohio, Eastern Division
HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE.
matter is before the Court on the motion of plaintiff
Christine Morabito (“Morabito”) for an award of
attorney fees in the amount of $5, 796.75 under the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. §
2412. (Doc. No. 19 [“Mot.”].) Defendant
Commissioner of Social Security (“Commissioner”)
opposed the motion with respect to the requested hourly rate.
(Doc. No. 21 [“Resp.”].)
filed this action on September 30, 2016, seeking review of
the Commissioner of Social Security's
(“Commissioner”) decision denying her
applications for period of disability and disability
insurance benefits under Title II of the Social Security Act,
42 U.S.C. §§ 416(i) and 423 et seq. (Doc. No. 1.)
The case was referred to the magistrate judge pursuant to
Local Rule 72.2, who issued a report recommending that the
decision of the Commissioner be vacated and the case remanded
for further proceedings. (Doc. No. 15.) The Commissioner
responded, stating that no opposition would be filed to the
recommendation. (Doc. No. 16.) Thus, the Commissioner's
decision was reversed and the case was remanded. (Doc. Nos.
17 and 18.)
support of her motion for attorney fees, Morabito submits:
(1) plaintiff's affidavit assigning any fee to which she
may be entitled under the EAJA to her attorney (Doc. No.
19-1); (2) the affidavit of plaintiff's counsel, John
Paul Oreh (“Oreh”) (Doc. No. 19-2 [“Oreh
Aff.”]); and (3) Oreh's time records for this case,
showing that 29.50 hours were expended between August 10,
2016 and August 15, 2017 (Doc. No. 19-3). In her motion,
plaintiff seeks an hourly rate of $196.50. (Mot. at 1157.)
opposing the motion, the Commissioner does not contend that
plaintiff is not entitled to EAJA fees or object to the
number of hours claimed by Oreh. Rather, the Commissioner
argues that plaintiff has not satisfied her burden to show
that she is entitled to attorney fees at an hourly rate of
EAJA requires the government to pay a prevailing social
security plaintiff's reasonable attorney 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); see Howard v. Barnhart, 376 F.3d 551,
554 (6th Cir. 2004). There is no dispute here that plaintiff
is a prevailing party under the EAJA, and the Commissioner
does not contend that its position was substantially
justified. See Hammock v. Comm'r of Soc. Sec.,
No. 1:12-CV-250, 2015 WL 7292750, at *1 (S.D. Ohio Oct. 26,
2015) (“A plaintiff who wins a remand of her social
security appeal in this Court is a ‘prevailing
party[.]'”), report and recommendation adopted
sub nom Hammock v. Acting Comm'r of Soc. Sec., No.
1:12-CV-250, 2015 WL 7276087 (S.D. Ohio Nov. 18, 2015).
EAJA provides that the amount of an attorney fee award shall
be based upon prevailing market rates for services similar in
kind and quality, but shall not exceed $125.00 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). It is plaintiff's burden to provide
appropriate evidence to support any requested increase over
the statutory rate. Coursey v. Comm'r of Soc.
Sec., 843 F.3d 1095, 1097 (6th Cir. 2016) (citing
Bryant v. Commissioner of Social Security, 578 F.3d
443, 450 (6th Cir. 2009)).
The motion does not support an hourly rate of
affidavit, submitted in support of the motion, states that he
spent 29.50 hours on this case and that his regular hourly
rate is $350.00. (Oreh Aff. ¶¶ 4-5.) According to
his affidavit, Oreh has practiced law and represented social
security disability and supplemental security income clients
for 32 years. (Oreh Aff. ¶ 3.) Oreh avers that he is
entitled to a cost-of-living increase over the statutory fee
of $125.00 based upon the “Consumer Price Index for
this region[, ]” which he calculates to yield an hourly
rate of $196.50. (Oreh Aff. ¶ 7.)
opposing the hourly rate requested by Morabito, the
Commissioner argues that in the Sixth Circuit, the consumer
price index (“CPI”) alone is insufficient to
justify an increase in the statutory hourly rate of $125.00.
(Resp. at 1166-67, citing Coursey v. Comm'r of Soc.
Sec., 843 F.3d 1095, 1098 (6th Cir. 2016) and Clark
v. Comm'r of Soc. Sec., 664 Fed.Appx. 525, 2016 WL
6958640 (6th Cir. Nov. 29, 2016).) Morabito did not reply or
otherwise supplement the motion to address the arguments and
case law raised by the Commissioner in opposing the hourly
[The Sixth Circuit] requires a plaintiff seeking an
attorney's fee of greater than $125 per hour to show by
competent evidence both that the cost of living justifies a
higher rate and, as the statute itself requires,
that the fee is “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 (quoting Blum v.
Stenson, 465 U.S. 886, 895 n.11, 104 S.Ct. 1541, 79
L.Ed.2d 891 (1984)). Accordingly, this court has held that
the CPI alone is insufficient to justify an attorney's
fee higher than the $125 per hour statutory cap.
Id.; Clark v. Comm'r of Soc. Sec., No.
16-5393, [664 Fed.Appx. 525], 2016 WL 6958640 (6th Cir. Nov.
29, 2016) (unpublished); Sakhawati v. Lynch, 839
F.3d 476, 481 (6th Cir. 2016). The CPI alone is ...