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Morabito v. Commissioner of Social Security

United States District Court, N.D. Ohio, Eastern Division

March 29, 2018

CHRISTINE MORABITO, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

          ORDER

          HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE.

         This 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.”].)

         A. Background

         Morabito 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.)

         In 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.)

         In 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 $196.50.

         B. Discussion

         The 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).

         The 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)).

         1. The motion does not support an hourly rate of $196.50

         Oreh's 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.)

         In 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 rate requested.

[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 ...

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