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Miller v. Commissioner of Social Security

United States District Court, W.D. Michigan, Southern Division

July 7, 2017

HILARY MARIE MILLER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OPINION AND ORDER

          PHILLIP J. GREEN, United States Magistrate Judge

         This 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.

         Discussion

         The 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. 2014).

         The 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.

         1. Hours Claimed

         The 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).

         Generally, 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.

         The 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[7] (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.[1]

         Additionally, 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 oral argument.[2]

         The Court finds that 23.25 hours in attorney time and 6.75 hours in paralegal time is reasonable for the work performed in this case.

         2. ...


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