UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MELISSA CAMPANARO,

Plaintiff, Civil Action No. 14-12876

 Honorable Laurie J. Michelson

v. Magistrate Judge Elizabeth A. Stafford

 

COMMISSIONER 

OF SOCIAL SECURITY,

 

Defendant. 

____________________________/

REPORT AND RECOMMENDATION TO GRANT IN PART 

PETITIONER’S APPLICATION FOR ATTORNEY’S FEES [ECF No. 22]

I. INTRODUCTION

Matthew 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 

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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. 

II. ANALYSIS

A.

In 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. 

The 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 

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smaller award to his or her client.”) (citation omitted). The EAJA allows a 

maximum attorney fee of $125.00 per hour. § 2412(d)(2)(A)(ii). 

A 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). 

Replying 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 

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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. 

Petitioner 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 

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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) (citation omitted). 

Petitioner 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. 

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III. CONCLUSION

For the above reasons, the Court RECOMMENDS that petitioner’s 

motion for § 406(b) attorney’s fees [ECF No. 22] be GRANTED IN PART, 

and that he be awarded $2,281.25. 

s/Elizabeth A. Stafford 

ELIZABETH A. STAFFORD

United States Magistrate Judge

Dated: August 2, 2019

NOTICE TO THE PARTIES REGARDING OBJECTIONS

Either party to this action may object to and seek review of this 

Report and Recommendation, but must act within fourteen days of service 

of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 

72(b)(2). Failure to file specific objections constitutes a waiver of any 

further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. 

Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 

638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that party 

might have to this Report and Recommendation. Willis v. Secretary of 

HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers 

Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

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Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

service of objections, the non-objecting party must file a response to 

the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

limitation. If the Court determines that any objections are without merit, it 

may rule without awaiting the response.

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served

upon counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on August 2, 2019.

s/Karri Sandusky acting in the absence of 

MARLENA WILLIAMS

Case Manager

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