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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

MELISSA A. HARRIMAN, 

Plaintiff, 

 vs. Civil Action 2:12-CV-33 

Judge Graham 

Magistrate Judge King 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

OPINION AND ORDER

 This case sought review, under the provisions of 42 U.S.C. § 405(g), 

of a final decision of the Commissioner of Social Security denying 

plaintiff’s application for supplemental security income. On February 25, 

2013, this Court reversed the decision of the Commissioner and remanded 

the action to the Commissioner for further proceedings. Order, Doc. No. 

22. Final judgment pursuant to Sentence 4 of 42 U.S.C. § 405(g) was entered 

that same date. Judgment, Doc. No. 23. This matter is now before the Court 

on Plaintiff Melissa A. Harriman’s Motion for Award of Attorney Fees and 

Costs Pursuant to the Equal Access to Justice Act (“Plaintiff’s Motion”), 

Doc. No. 24. Plaintiff specifically seeks an award of $4,233.42 for 23.00 

hours of work compensated at an average hourly rate of approximately $184.06 

per hour. Plaintiff’s Motion, p. 1. The Commissioner has not filed a 

response to Plaintiff’s Motion. For the reasons that follow, Plaintiff’s 

Motion is GRANTED in part. 

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II. STANDARD

 The Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, authorizes 

an award of fees incurred in connection with judicial proceedings: 

[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, . . . 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). In Commissioner, INS v. Jean, 496 U.S. 154 

(1990), the United States Supreme Court explained that, under the EAJA, 

eligibility for a fee award in any civil action requires: (1) 

that the claimant be a “prevailing party”; (2) that the 

Government’s position was not “substantially justified”; (3) 

that no “special circumstances make an award unjust”; and, (4) 

pursuant to 28 U.S.C. § 2412(d)(1)(B), that any fee application 

be submitted to the court within 30 days of final judgment in 

the action and be supported by an itemized statement. 

Id. at 158. 

III. DISCUSSION

 This action was remanded to the Commissioner and final judgment was 

entered pursuant to Sentence 4 of 42 U.S.C. § 405(g) on February 25, 2013. 

See Order, Doc. No. 22; Judgment, Doc. No. 23. Plaintiff is a “prevailing 

party” under the EAJA because she received a Sentence 4 remand order. See 

Shalala v. Schaefer, 509 U.S. 292, 301-02 (1993). Plaintiff’s Motion was 

also filed within 30 days of final judgment, as required under the EAJA. 

See 28 U.S.C. § 2412(d)(1)(B). 

Whether or not the Commissioner’s position was substantially 

justified is essentially a question of reasonableness. Sullivan v. 

Hudson, 490 U.S. 877, 883-85 (1989); Pierce v. Underwood, 487 U.S. 552, 

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564-65 (1988). The position of an agency is “substantially justified” if 

it is “‘justified in substance or in the main’ – that is, justified to a 

degree that would satisfy a reasonable person.” Underwood, 487 U.S. at 

565-66. The Commissioner’s litigation position is “substantially 

justified” if it is reasonable in both law and fact. Id. An agency’s 

position can be substantially justified even if a court ultimately finds 

it erroneous or not supported by substantial evidence. See United States 

v. 2323 Charms Rd., 946 F.2d 437, 440 (6th Cir. 1991). However, the burden 

of showing substantial justification rests with the Commissioner. 

Scarborough v. Principi, 541 U.S. 401, 414 (2004); United States v. True, 

250 F.3d 410, 419 n.7 (6th Cir. 2001). 

 In the case sub judice, the Court reversed the decision of the 

Commissioner and remanded the matter for further proceedings because the 

administrative law judge’s evaluation of Listing 12.05C was not supported 

by substantial evidence. See Order, Doc. No. 22; Report and 

Recommendation, Doc. No. 21, p. 9. As the Magistrate Judge stated in 

recommending the remand of this action, the administrative law judge’s 

finding in evaluating Listing 12.05C, i.e., that plaintiff did not have 

a physical or other mental impairment imposing an additional and 

significant work-related limitation of function, was inconsistent with his

prior finding “that plaintiff suffers other severe physical and mental 

impairments.” Report and Recommendation, p. 9. The administrative law 

judge’s decision was internally inconsistent and the Commissioner does not 

argue that its position was substantially justified. The Court therefore 

concludes that the position of the Commissioner was not substantially 

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justified and that an award of fees under the EAJA is warranted. See True, 

250 F.3d at 419 n.7 (“[U]nder the EAJA it is the government’s burden to 

prove that its position was substantially justified.”). 

 Having determined that attorneys’ fees should be awarded under the 

EAJA, the Court must also determine what fee is reasonable. See 28 U.S.C. 

§ 2412(d)(2)(A); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (The 

plaintiff has the burden of proving that the fees requested under the EAJA 

are in fact reasonable.). Plaintiff seeks an award of attorneys’ fees in 

the amount of $4,233.42, itemized as follows: 

Date Hourly Rate1 Hours Fee 

Nov-11 $ 181.62 1.50 $ 272.43 

Jan-12 $ 181.97 3.00 $ 545.91 

Feb-12 $ 182.77 0.25 $ 45.69 

Mar-12 $ 184.16 1.50 $ 276.24 

May-12 $ 184.50 8.25 $ 1,522.13 

Jun-12 $ 184.23 0.25 $ 46.06 

Jul-12 $ 183.93 0.50 $ 91.97 

Aug-12 $ 184.95 3.25 $ 601.09 

Jan-13 $ 184.87 0.25 $ 46.22 

Feb-13 $ 184.87 1.00 $ 184.87 

Mar-13 $ 184.87 3.25 $ 600.83 

Total: 23.00 $ 4,233.42 

Plaintiff’s Motion, Exhibit D, at p. 16. 

An award under the EAJA must be reasonable: 

 

1 It appears that plaintiff determined the hourly rate by dividing the United States 

Bureau of Labor Statistics’ Consumer Price Index (“CPI”) for the month in which 

services were rendered by the CPI for March 1996, and then multiplying that figure 

by $125.00. The more common method of determining a CPI adjusted hourly rate is 

to divide the average annual CPI for the year in which services were rendered by 

the CPI for March 1996, and then multiplying that figure by $125.00. See e.g.,

Couch v. Comm’r of Soc. Sec., No. 1:11-cv-17, 2012 WL 6644284, at *5 (S.D. Ohio 

Dec. 20, 2012); Willis v. Comm’r of Soc. Sec., No. 10-CV-594, 2012 WL 4322604, 

at *3 (S.D. Ohio Sept. 20, 2012); McKenzie v. Comm’r of Soc. Sec., No. 1:09-cv-341, 

2011 WL 2580279, at *5 (S.D. Ohio June 6, 2011). Plaintiff’s method is acceptable 

here because it results in an hourly rate that is slightly lower than the figure 

generated by the more common method of calculation. 

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The amount of fees awarded under this subsection shall be based 

upon prevailing market rates for the kind and quality of the 

services furnished, except that . . . attorney fees shall not 

be awarded in excess of $ 125 per hour unless the court 

determines that an increase in the cost of living or a special 

factor, such as the limited availability of qualified attorneys 

for the proceedings involved, justifies a higher fee. 

28 U.S.C. § 2412(d)(2)(A). The $125.00 “statutory rate is a ceiling and 

not a floor.” Chipman v. Sec’y of Health & Human Servs., 781 F.2d 545, 

547 (6th Cir. 1986). Therefore, a plaintiff bears the burden of providing 

evidence sufficient to support a request for an award calculated at a higher 

hourly rate. Bryant v. Comm’r of Soc. Sec., 578 F.3d 443, 450 (6th Cir. 

2009) (citing Blum v. Stenson, 465 U.S. 886, 898 (1984)). To meet this 

burden, a plaintiff 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. (quoting 

Blum, 465 U.S. at 895 n.11). 

 Once the district court has examined the prevailing market rate, it 

must then consider whether a fee in excess of the $125.00 statutory cap 

is justified based on cost of living increases. 28 U.S.C. § 2412(d)(2)(A); 

Begley v. Sec’y of Health & Human Servs., 966 F.2d 196, 199-200 (6th Cir. 

1992). “[E]ven though the cost of living has risen since the enactment 

of the EAJA,” the decision whether or not to grant such an adjustment is 

left to the sound discretion of the district court. Id. at 199-200. 

Simply submitting the Department of Labor’s Consumer Price Index and 

arguing that the rate of inflation justifies an enhanced hourly rate does 

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not warrant an increase in the rate. Bryant, 578 F.3d at 450. 

 In the case presently before the Court, plaintiff has submitted the 

affidavit of his attorney, Clifford M. Farrell, the Department of Labor’s 

Consumer Price Index, the affidavit of Gary J. Pandora, Esq., and a copy 

of The Economics of Law Practice in Ohio in support of the proposed hourly 

rate. The affidavit of plaintiff’s attorney sets forth his normal rate 

in non-contingent matters at $175 per hour. See Affidavit of Plaintiff’s 

Attorney, Clifford M. Farrell, attached to Plaintiff’s Motion as Exhibit 

B, at p. 2. The affidavit of Gary J. Pandora, Esq., an attorney in Columbus, 

Ohio who has represented Social Security claimants in federal court, avers 

that an hourly rate of “up to $200-225 per hour” is “in line with prevailing 

rates in Ohio for the same type of services provided by lawyers of reasonably 

comparable skill, experience and reputation” to plaintiff’s attorney. 

Affidavit of Gary J. Pandora, attached to Plaintiff’s Motion as Exhibit 

E, at p. 2. Additionally, plaintiff has provided evidence that the mean 

billing rate in the Downtown Columbus area, where plaintiff’s attorney 

practices, is $266 per hour, the mean billing rate for trial attorneys is 

$244 an hour, and the mean billing rate in Ohio for attorneys with more 

than 25 years’ experience is $229 an hour. See The Economics of Law 

Practice in Ohio, attached to Plaintiff’s Motion as Exhibit F. Under the 

circumstances, the Court concludes that plaintiff has provided 

satisfactory evidence that the requested average hourly rate of 

approximately $184.06 is in line with the rates prevailing in the community 

for similar services by lawyers of reasonably comparable skill, experience 

and reputation. Cf. Delver v. Astrue, No. 1:06cv266, 2011 WL 4914963, at 

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*3 n.2 (S.D. Ohio Sept. 9, 2011) (suggesting a preference for “affidavits 

from other attorneys who practice in federal court,” “publications that 

discuss the prevailing market rate,” or “an affidavit from counsel setting 

forth . . . her normal hourly rate”). 

 The Court also concludes that the hours itemized by plaintiff’s 

counsel are reasonable. Notably, plaintiff’s counsel did not include time 

in connection with either plaintiff’s or the Commissioner’s requests for 

extensions of time. See Plaintiff’s Motion, Exhibit D, at pp. 1-3. 

Similarly, plaintiff’s counsel did not itemize time spent reviewing emails 

from the Court’s electronic docketing system, even though billing for such 

activities has been upheld in the past. See Drain v. Astrue, No. 

2:10-cv-0025, 2011 WL 63513, at *3 (S.D. Ohio Jan. 6, 2011). Additionally, 

the administrative record in this case exceeds 850 pages and there is no 

indication that the time billed is improper or excessive. Based on the 

foregoing, the Court concludes that the hours itemized by plaintiff’s 

counsel are reasonable. 

Finally, plaintiff requests that any fees awarded be payable directly 

to her attorney, pursuant to her affidavit and assignment of EAJA fees. 

See Plaintiff’s Motion, p. 1, Exhibit A. The United States Supreme Court 

has determined that fees awarded to a prevailing party under the EAJA belong 

to the litigant, not to his or her attorney. Astrue v. Ratliff, 130 S.Ct. 

2521, 2527 (2010). Fees can be directly awarded to an attorney, however, 

where the litigant does not owe a debt to the government and assigns the 

right to receive fees to the attorney. Id. at 2529. 

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In the case presently before the Court, it is unclear whether 

plaintiff owes a debt to the government. Accordingly, the Court finds 

that, under Ratliff, the proper course is to award fees directly to 

plaintiff and remain silent as to the ultimate disposition of those fees. 

See Oliver v. Comm’r of Soc. Sec., No. 2:11-cv-447, 2013 WL 65429 (S.D. 

Ohio Jan. 4, 2013). 

For the foregoing reasons, Plaintiff’s Motion, Doc. No. 24, is GRANTED

in part. Plaintiff is AWARDED an attorney fee under the Equal Access to 

Justice Act in the amount of $4,233.42. 

Date: April 25, 2013 

 ________s/James L. Graham___ 

 James L. Graham 

 United States District Judge 

 

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