UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DARRYL DEAN WEGRZYN, No. 14-12779

Plaintiff, District Judge Sean F. Cox

v. Magistrate Judge R. Steven Whalen

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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REPORT AND RECOMMENDATION

This is a Social Security Disability appeal. On May 20, 2015, pursuant to the

parties’ stipulation, the Court entered judgment in favor of the Plaintiff, remanding the

case to the Commissioner under the fourth sentence of 42 U.S.C. § 405(g). Before the

Court is Plaintiff’s motion for attorney fees under the Equal Access to Justice Act

(“EAJA”), 28 U.S.C. § 2412(d)(1)(A) [Doc. #15], which has been referred for a Report

and Recommendation under 28 U.S.C. § 636(b)(1)(B). The motion is unopposed.

I recommend that the motion for attorney fees be GRANTED, and that Plaintiff be

awarded $4,055.89 in attorney fees, plus the $400.00 filing fee, for a total of $4,455.89.

I. BACKGROUND

Plaintiff, through counsel, filed his complaint on July 16, 2014, and filed a motion

for summary judgment on November 10, 2014. The Commissioner did not file a crossmotion for summary judgment; rather, she stipulated to a remand for further proceedings,

pursuant to 42 U.S.C. § 405(g). The Court entered judgment in favor of the Plaintiff on

May 20, 2015. Petitioner timely filed his motion for attorney fees.

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II. STANDARD OF REVIEW

The Equal Access to Justice Act (“EAJA”) is one of some 131 fee shifting statutes

enacted by Congress. See Coulter v. State of Tennessee, 805 F.2d 146, 148 (6 Cir. th

1986). Specifically, 28 U.S.C. § 2412(d)(1)(A) provides, in pertinent 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 (other than cases sounding in tort), including

proceedings for judicial review of agency action, brought by or against the

United States...unless the court finds the position of the United States was

substantially justified or that special circumstances make an award unjust.”

The question of whether the position of the United States was “substantially

justified” is answered with respect to not only the civil action, but the administrative

decision upon which the civil action is based:

“(D) ‘position of the United States’ means, in addition to the position taken

by the United States in the civil action, the action or failure to act by the

agency upon which the civil action is based....” 28 U.S.C. § 2412(d)(2)(D).

III. DISCUSSION

A. Entitlement to EAJA Fees

In the context of a Social Security case brought under 42 U.S.C. § 405(g), a

plaintiff such as Mr. Wegrzyn who wins a Sentence Four remand directing further

administrative proceedings is a “prevailing party” within the meaning of the EAJA. 

Shalala v. Schaefer, 509 U.S. 292, 301-302 (1993). In addition, I find that the

Commissioner’s decision to deny benefits at the administrative level was not substantially

justified, based on (1) a review of Plaintiff’s motion for summary judgment; (2) the

stipulated order of remand, which implied errors under the treating physician rule (20

C.F.R. § 404.1527 and SSR 96-5p and 96-6p), the credibility determination (20 C.F.R. §

404.1529 and SSR 96-7p), and the assessment of Plaintiff’s residual functional capacity

(20 C.F.R. § 404.1545 and SSR 96-8p and 96-6p); (3) the Commissioner’s stipulation to a

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remand and her lack of opposition to this motion. Plaintiff is entitled to EAJA fees.

B. Amount of Fees

Attorney’s fees claimed under the EAJA must be reasonable. Glass v. Secretary of

HHS, 822 F.2d 19, 21 (6 Cir. 1987). As the Supreme Court noted in Hensley v. th

Eckerhart, 461 U.S. 424, 433 (1983), “[t]he most useful starting point for determining the

amount of a reasonable fee is the number of hours reasonably expended on the litigation

multiplied by a reasonable hourly rate.” In Glass, 822 F.2d at 21, the Sixth Circuit, citing

Coulter v. State of Tennessee, 805 F.2d 146, 149 (6 Cir. 1986), recognized “that the rate- th

times-hours method of calculation, also known as the ‘lodestar’ approach, includes most,

if not all, of the factors relevant to determining a reasonable attorney’s fee.”

Plaintiff’s counsel argues that he is entitled an increase in hourly rate from the

statutory rate of $125 per hour. See 28 U.S.C. § 2412(d)(2)(A). In Bryant v.

Commissioner of Soc. Sec. 578 F.3d 443, 450 (6 Cir. 2009) the Sixth Circuit held that it th

is the plaintiffs’ burden to justify a rate above the statutory maximum and that they must

produce evidence beyond the attorney’s own affidavit:

“In requesting an increase in the hourly-fee rate, Plaintiffs bear the burden

of producing appropriate evidence to support the requested increase. See

Blum v. Stenson, 465 U.S. 886, 898, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)

(considering attorney fees under § 1988, the Court stated, “[t]he burden of

proving that such an adjustment is necessary to the determination of a

reasonable fee is on the fee applicant”). 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. at 895 n. 11, 104 S.Ct. 1541.”

Plaintiff has submitted the “affirmation” of his attorney, Eddy Pierre Pierre. Mr.

Pierre cites his and co-counsel’s educational background and experience, statistics from

the Consumer Price Index, and the increase in his firm’s operating expenses since the

EAJA was enacted in 1996. In his motion, Plaintiff cites other cases from this District

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suggesting that attorneys in this community with comparable skill and experience merit

an increase in hourly rate to 186.05 per hour. Together, this information supports

Plaintiff’s requested hourly rate. See Pizzo v. Commissioner of Social Sec. 2014 WL

7157129, *5 (E.D.Mich. December 15, 2014)(affidavit, CPI, and Economics of Law

Survey, considered in tandem, support request for $187.02 per hour); see also Cowart v.

Commissioner of Soc. Sec., 795 Fed.Supp.2d 667, 671 (E.D. Mich. 2011)(“Given the

effect of inflation since 1996 . . . $173.00 per hour is a reasonable rate for work

performed from November, 2008 to June, 2010”). 

I have also reviewed counsel’s time sheets, and find that the 21.8 hours of attorney

time is reasonable, and well within the norm for Social Security appeals. In Glass, the

Sixth Circuit noted that “the experienced district judge is very likely correct that twenty to

thirty hours may well be the norm for attorneys to handle most [Social Security] cases....”

822 F.2d at 20. 

C. Fees are Payable to Counsel

 As is typical in Social Security appeals, Plaintiff has executed an assignment of

EAJA fees to his attorney. While EAJA fees would otherwise be paid to the Plaintiff, see

Astrue v. Ratliff, 560 U.S. 586 (2010), the assignment permits payment directly to the

attorney, with an offset for any preexisting federal debt owed by the Plaintiff. See

Cowart, supra., 795 Fed.Supp.2d at 671-72. 

D. Plaintiff is Entitled to the Filing Fee

Under EAJA, recovery of the filing fee is appropriate. See 28 U.S.C. § 2412(a)(1). As

such, Plaintiff should be awarded a filing fee in the amount of $400.00.

IV. CONCLUSION

I therefore recommend that Plaintiff’s motion for attorney fees [Doc. #15] be

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GRANTED, and that Plaintiff be awarded $4,055.89 in attorney fees, plus the $400.00 filing

fee, for a total of $4,455.89.

I further recommend that no later than 14 days from the date of a final order granting

this motion, the Commissioner will determine whether the Plaintiff owes the Government a

pre-existing debt. If no such debt is owed, then payment of the EAJA fees will be made

directly to Plaintiff’s attorney. If the Plaintiff does owe a pre-existing debt, the EAJA fees

will be offset by the amount of the debt, with any remainder to be paid to Plaintiff’s attorney.

Any objections to this Report and Recommendation must be filed within 14 days of

service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D. Mich. LR

72.1(d)(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 (6 Cir. 1981). Filing of objections th

which raise some issues but fail to raise others with specificity will not preserve all the

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

HHS, 931 F.2d 390, 401 (6 Cir. 1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 th

F.2d 1370, 1373 (6 Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any th

objections is to be served upon this Magistrate Judge.

Within 14 days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be not more than 20 pages in length

unless by motion and order such page limit is extended by the court. The response shall

address specifically, and in the same order raised, each issue contained within the objections. 

s/R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Date: January 5, 2016

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was sent to parties of record on

January 5, 2016, electronically and/or by U.S. mail.

s/C. Ciesla 

Case Manager 

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