United States District Court, W.D. Michigan, Southern Division
MEMORANDUM OPINION AND ORDER
PHILLIP J. GREEN, United States Magistrate Judge
was a social security action brought under 42 U.S.C. §
405(g) seeking judicial review of a final decision of the
Commissioner of Social Security denying plaintiff's
claims for Disability Insurance Benefits (DIB). On December
20, 2016, this Court entered a judgment vacating the
Commissioner's decision and remanding this matter back to
the Commissioner under sentence four of 42 U.S.C. §
405(g) for further administrative proceedings. (ECF No. 20).
On March 28, 2017, this Court dismissed the parties'
joint stipulated motion (ECF No. 21) for an award of
attorney's fees under the Equal Access to Justice Act
(EAJA) because the motion was unsupported by evidence and did
not address whether the government's position was
substantially justified. (ECF No. 22). Plaintiff subsequently
filed an unopposed motion for attorney's fees under the
EAJA. (ECF No. 23). For the reasons set forth herein, the
Court will grant in part and deny in part plaintiffs motion
for attorney's fees, and a judgment will be entered in
plaintiffs favor in the amount of $4, 575.00.
EAJA provides in relevant part:
Except as otherwise specifically provided by statute, a court
shall award to a prevailing party other than the United
States fees and other expenses . . . incurred by that party
in any civil action . . ., including proceedings for judicial
review of agency action, brought by or against the United
States . . ., 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
Astrue v. Ratliff, 560 U.S. 586, 591-93 (2010). A
district court's decision granting or denying a motion
for attorney's fees under the EAJA is reviewed on appeal
under a deferential "abuse of discretion-standard.
DeLong v. Commissioner, 748 F.3d 723, 725 (6th Cir.
Sixth Circuit has identified three conditions that must be
met to recover attorney's fees under the EAJA: (1) the
claimant must be a prevailing party; (2) the government's
position must be without substantial justification; and (3)
there are no special circumstances that would warrant a
denial of fees. See DeLong v. Commissioner, 748 F.3d
at 725. Plaintiff is a prevailing party under this
Court's judgment remanding this matter to the
Commissioner. See Shalala v. Schaefer, 509 U.S. 292,
298 (1993); 28 U.S.C. § 2412(d)(2)(H). Plaintiff is a
financially eligible person under the EAJA. See 28
U.S.C. § 2412(d)(2)(B). Plaintiff has not submitted a
certificate of compliance pursuant to W.D. Mich. LCivR
7.1(d). However, while plaintiff should take notice to follow
Rule 7.1(d), Plaintiff represents that the motion for
attorney's fees is unopposed and that defendant offers no
special circumstances that might warrant denial of fees and
has made no attempt to satisfy the burden of demonstrating
that the government's position was substantially
justified. (ECF No. 23, 24); See Scarborough v.
Principi, 541 U.S. 401, 414 (2004); Peck v.
Commissioner, 165 F. App'x 443, 446 (6th Cir. 2006).
Accordingly, plaintiff is entitled to an award of
attorney's fees under the EAJA.
United States Court of Appeals for the Sixth Circuit has
cautioned lower courts against "rubber stamping"
EAJA fee applications. See Begley v. Secretary of Health
& Human Servs., 966 F.2d 196, 200 (6th Cir. 1992).
The EAJA requires "an itemized statement from [the]
attorney . . . representing or appearing in behalf of the
party stating the actual time expended and the rate at which
fees and other expenses were computed." 28 U.S.C. §
2412(d)(1)(B). Plaintiff seeks compensation for 34.25 hours
in attorney time and 14.75 hours in paralegal time for a
total of 49 hours. (ECF No. 24, PageID.1116); see
also (ECF No. 24-3). Plaintiff also seeks compensation
for $224.85 in travel expenses. (ECF No. 24, PageID.1116-17);
see also (ECF No. 24-3).
a reasonable expenditure of time for representation of a
party seeking judicial review of the Commissioner's final
administrative decision denying claims for DIB and SSI
benefits is in the range of 15 to 30 hours. See Flamboe
v. Commissioner, No. 1:12-cv-606, 2013 WL 1914546, at *
2 (W.D. Mich. May 8, 2013); see also Fredericks v.
Commissioner, No. 1:12-cv-1234, 2014 WL 4057794, at * 2
(W.D. Mich. Aug. 14, 2014); Nichols v. Commissioner,
No. 1:09-cv-1091, 2012 WL 1189764, at * 2 (W.D. Mich. Mar.
19, 2012) (collecting cases). "Unlike other types of
civil cases in which the amount of discovery alone often
creates wide variability in litigation hours, the vast
majority of social security appeals conform to a relatively
narrow range of hours because they involve a largely settled
area of law, require no discovery, and follow a precise
briefing schedule[.]" Flamboe v. Commissioner,
2013 WL 1914546, at * 2 (quoting Crim v.
Commissioner, No. 1:11-cv-137, 2013 WL 1063476, at * 4
(S.D. Ohio Mar. 14, 2013)). “Although exceptions exist
and each case is examined on its own merits, 40 hours
generally marks the ‘outer limits' of a reasonable
expenditure of time on this type of case.” Id.
evidence provided by plaintiff cannot support the
extraordinary 49 hours requested. This case did not involve
any novel or complex legal questions. Arguments related to
assessment of opinion evidence and credibility are routine.
See Flamboe v. Commissioner, No. 1:14-cv-1235, 2016
WL 393567, at * 2 (W.D. Mich. Jan. 11, 2016). The length of
the administrative record was unexceptional. See
(ECF No. 9-1). Further, secretarial, clerical, and other
office overhead costs are not recoverable. See Flamboe v.
Commissioner, 2016 WL 393567, at * 2 (citing Flamboe
v. Commissioner, 2013 WL 1914546, at * 2; see also
Neil v. Commissioner, 495 F. App'x 845, 84 (9th
Cir. 2012); Spiller v. Commissioner, 940 F.Supp.2d
647, 651 (S.D. Ohio 2013)). The upper limit of a reasonable
time to review this administrative record, conduct whatever
legal research was necessary, prepare and file
plaintiff's brief and reply, and prepare for and attend
oral argument was 30 hours.
this Court does not routinely award travel expenses or travel
time, but plaintiff's attorney will receive credit for 2
hours reasonably expended for preparing for and attending
Court finds that 23.25 hours in attorney time and 6.75 hours
in paralegal time is reasonable for the work performed in