United States District Court, S.D. Ohio, Eastern Division
TYRA J. BETHEA, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
Michael H. Watson
CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE
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.
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.)
Motion, Plaintiff seeks an award of attorney's fees
totaling $5, 505 for 36.7 hours expended, billed at $150 per
hour. 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.
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.
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).
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
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)).
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 ...