United States District Court, E.D. Michigan, Southern Division
Honorable Laurie J. Michelson, Judge.
REPORT AND RECOMMENDATION TO GRANT IN PART
PETITIONER'S APPLICATION FOR ATTORNEY'S FEES [ECF NO.
ELIZABETH A. STAFFORD, UNITED STATES MAGISTRATE JUDGE.
F. Taylor, counsel for Plaintiff Melissa Campanaro, petitions
for an award for attorney's fees under the Social
Security Act, 42 U.S.C. § 406(b). [ECF No. 22].
Petitioner requests $5, 750.00 of the $20, 750.25 that the
Social Security Administration (SSA) withheld from Campanaro
award of past-due benefits as potential attorney's fees;
petitioner has requested the remaining $15, 000.25 fee from
the SSA for the work done at the agency level. [ECF No. 22,
PageID.625]. The Commissioner responded to the petition by
requesting a $3, 468.75 reduction based on petitioner's
failure to timely move for Equal Access to Justice Act (EAJA)
fees. [ECF No. 23]. The Court agrees and
RECOMMENDS that the application for
attorney's fees be GRANTED IN PART,
resulting in an award of $2, 281.25.
Social Security cases, attorney's fees may be awarded
under Section 406(b) of the Social Security Act and the EAJA
(28 U.S.C. § 2412(d)). Minor v. Comm'r of Soc.
Sec., 826 F.3d 878, 880 (6th Cir. 2016). A significant
difference between attorney's fees awarded under Section
406(b) and under the EAJA is there source: “while fees
awarded under 42 U.S.C. § 406(b) are deducted from a
claimant's award of past-due Social Security benefits,
the United States must pay fees awarded under the EAJA out of
government funds.” Id. at 881.
EAJA generally increases a successful Social Security
claimant's portion of past-due benefits. Gisbrecht v.
Barnhart, 535 U.S. 789, 796 (2002). That is because
“[f]ee awards may be made under both prescriptions, but
the claimant's attorney must refun[d] to the claimant the
amount of the smaller fee.'” Id. (quoting
Act of Aug. 5, 1985, Pub.L. 99-80, § 3, 99 Stat. 186);
see also Drake v. Comm'r of Soc. Sec., No.
14-12662, 2016 WL 492704, at *1 (E.D. Mich. Feb. 9, 2016)
(“[T]he EAJA Savings Provision requires an attorney
receiving two fee awards to refund the smaller award to his
or her client.”) (citation omitted). The EAJA allows a
maximum attorney fee of $125.00 per hour. §
motion for an award of EAJA fees is due within 30 days of
final judgment in the action, must itemize “the actual
time expended and the rate at which fees and other expenses
were computed, ” and must “allege that the
position of the United States was not substantially
justified.” § 2142(d)(1)(B); see also Astrue
v. Ratliff, 560 U.S. 586, 594 (2010). The mere fact that
the court finds an ALJ's decisions is not supported by
substantial evidence does not mean the decision was not
substantially justified. Gonzales v. Comm'r of Soc.
Sec., No. 16-CV-14350, 2019 WL 2617048, at *2 (E.D.
Mich. May 28, 2019), adopted, No. 16-14350, 2019 WL
2613098 (E.D. Mich. June 26, 2019) (citations omitted).
Substantial justification means “justified to a degree
that could satisfy a reasonable person” and reasonable
“in both fact and law.” Pierce v.
Underwood, 487 U.S. 552, 565 (1988).
to the Commissioner's argument he should have applied for
EAJA fees, petitioner notes that he had argued in his motion
for summary judgment that “the ALJ failed to give
proper weight to the opinions of the treating physicians and
omitted relevant evidence of record to undermine the
credibility of Plaintiff.” [ECF No. 24, PageID.680].
The Court agreed with petitioner in its report and
recommendation, finding that the “ALJ grossly misstated
and under-represented the medical evidence” and
violated the treating physician rule. [ECF No. 19,
PageID.608-17]. District Judge Laurie J. Michelson adopted
the recommendation to remand the case for further
consideration. [ECF No. 20]. But now, petitioner claims that
he did not move for EAJA fees because he could not in
“good conscience” claim that the position of the
United States was not substantially justified. [ECF No. 24,
PageID. 680]. This claim cannot be credited given
petitioner's specific allegations of error by the ALJ and
the Court's agreement that the ALJ had grossly
misrepresented the record.
should not be awarded the full $5, 750.00 requested. Under
Section 406(b), attorneys may collect attorney's fees of
up to 25% of past due benefits under contingency-fee
agreements, but the amount must be tested for reasonableness.
Gisbrecht, 535 U.S. at 808-09. There is a rebuttable
presumption that a contingency-fee agreement with a cap of
25% is reasonable. Lasley v. Comm'r of Soc.
Sec., 771 F.3d 308, 309 (6th Cir. 2014). But here,
petitioner's request for the full amount of fees under
Section 406(b) is unreasonable. “The unreasonableness
of the request lies in plaintiff's attorney's failure
to request EAJA fees.” Iliceto v. Sec'y of
Dep't of Health & Human Servs., of U.S., No.
CV-83-2160, 1990 WL 186254, at *1 (E.D.N.Y. Nov. 14, 1990). A
remedy for this failure is to reduce the amount of fees
awarded under Section 406(b) to equal the foregone EAJA fees.
Szostek v. Berryhill, No. CV 14-11531, 2017 WL
6943420, at *2 (E.D. Mich. Nov. 22, 2017), adopted
No. 14-11531, 2018 WL 398443 (E.D. Mich. Jan. 12, 2018)
states in his motion for Section 406(b) attorney's fees
that he spent 27.75 hours on this case in this Court, [ECF
No. 22, PageID.599], which translates into an expected EAJA
award of $3, 468.75 (at $125.00 per hour). That amount likely
would have been refunded to Campanaro had petitioner timely
moved for an EAJA award. Gisbrecht, 535 U.S. at 796;
Drake, 2016 WL 492704, at *1. Thus, the Court
recommends that petitioner's request for attorney's
fees be granted, but that the $5, 750.00 be reduced by $3,
468.75, resulting in an award of $2, 281.25. The Court does
not otherwise suggest that petitioner was ineffective or that
the amount of Section 406(b) fees requested is unreasonable.
above reasons, the Court RECOMMENDS that
petitioner's motion for § 406(b) attorney's fees
[ECF No. 22] be GRANTED ...