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Bethea v. Commissioner of Social Security

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

June 20, 2018

TYRA J. BETHEA, Plaintiff,

          Judge Michael H. Watson




         This matter is before the undersigned for a Report and Recommendation on Plaintiff's Motion for Attorney Fees under the Equal Access to Justice Act (ECF No. 17), the Commissioner's Response (ECF No. 18), and Plaintiff's Reply (ECF No. 19). For the reasons that follow, it is RECOMMENDED that Plaintiff's Motion be GRANTED IN PART and that the Court AWARD Plaintiff attorney's fees in the amount of $4, 587.50.


         Plaintiff filed this action on August 29, 2017, seeking review of an adverse decision of the Commissioner of Social Security (“Commissioner”). (ECF No. 1.) On February 6, 2018, the Court granted the parties' Joint Motion to Remand Plaintiff's case for further proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g). (ECF No. 15.) On May 7, 2018, Plaintiff filed the instant Motion, seeking an award of attorney fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”). (ECF No. 17.)

         In her Motion, Plaintiff seeks an award of attorney's fees totaling $5, 505 for 36.7 hours expended, billed at $150 per hour.[1] Plaintiff asserts that the hours expended are reasonable and in line with the number of hours expended for typical social security cases, citing Hayes v. Secretary of Health and Human Services, 923 F.2d 418 (6th Cir. 1990). She also points out that her counsel was first engaged after the administrative proceedings had concluded, requiring her counsel to expend additional time to familiarize himself with the 952-page record. Finally, Plaintiff submits that it was the quality of the Statement of Errors her counsel drafted that convinced the Social Security Agency to remand this case.

         In her Memorandum in Opposition, the Commissioner represents that she does not oppose awarding reasonable fees under the EAJA in this action. The Commissioner also does not challenge Plaintiff's counsel's requested hourly rate. Instead, the Commissioner posits that Plaintiff has not satisfied her burden to show that the 36.7 hours expended were reasonable. The Commissioner relies upon Glass v. Secretary of Health and Human Services, 822 F.2d. 19 (6th Cir. 1987) to argue that the typical number of hours expended in social security appeals ranges from 20-30 hours, with 40 hours being on the high end. The Commissioner concludes that the hours expended in this case should fall within the low end of the typical range because Plaintiff's counsel is experienced and was not required to review a response brief or prepare a reply brief because the parties agreed to remand. The Commissioner also cites cases in which courts have found hours in excess of 30 to draft statements of error to be unreasonable and a social security case that involved a 1042-page record and was remanded following full briefing in which Plaintiff's counsel expended only 31.9 hours. (See Comm'r Mem. in Opp. 4-5, ECF No. 18.) The Commissioner asks the Court to reduce the compensable hours to 20-25 hours.


         Under the EAJA, when the plaintiff is a prevailing party in an action against the government, a court must award attorney's fees and expenses, unless the government's position is substantially justified or special circumstances would make an award unjust. 28 U.S.C. § 2412(d)(1)(A). “Once a court makes the threshold determination that a party is eligible for EAJA fees, it looks to the lodestar amount as a starting point for calculating a reasonable fee award, ” which “is the product of the number of hours billed and a reasonable hourly rate.” Minor v. Comm'r of Soc. Sec., 826 F.3d 878, 881 (6th Cir. 2016) (internal quotation marks and citations omitted).

         With respect to the reasonable hourly rate, the EAJA limits recovery of attorney's fees to $125 per hour unless the court concludes that the circumstances justify a higher rate:

The amount of fees awarded . . . shall be based upon prevailing market rates for the kind and quality of the services furnished, except that . . . attorney fees shall not be awarded in excess of $125 per hour unless 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 proceedings involved, justifies a higher fee.

28 U.S.C. § 2412(d)(2)(A). In analyzing the EAJA, the United States Court of Appeals for the Sixth Circuit has emphasized that the “statutory rate is a ceiling and not a floor.” Chipman v. Sec'y of Health & Hum. Servs., 781 F.2d 545, 547 (6th Cir. 1986). Furthermore, “[i]n requesting an increase in the hourly-fee rate, plaintiffs bear the burden of producing appropriate evidence to support the requested increase.” Bryant v. Comm'r of Soc. Sec., 578 F.3d 443, 450 (6th Cir. 2009). Accordingly, the Sixth Circuit has held that “Plaintiffs must ‘produce 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.'” Id. (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)).

         In determining the appropriate rate, the Court may allow for a cost-of-living adjustment to justify an award in excess of $125 per hour. See Begley v. Sec'y of Health & Hum. Servs., 966 F.2d 196, 199 (6th Cir. 1992). The determination of whether a cost-of-living increase justifies a fee in excess of the $125 rate is left to the Court's discretion. Id. It is not sufficient, however, that a party submit only the Department ...

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