IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JENNIFER D. BROWN,

Plaintiff,

vs. Civil Action 2:12-cv-511

Judge Marbley

Magistrate Judge King 

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

REPORT AND RECOMMENDATION

The decision of the Commissioner of Social Security was reversed

pursuant to Sentence 4 of 42 U.S.C. § 405(g) and the matter was remanded

for further consideration of the opinions of plaintiff’s treating

neurologist. Opinion and Order, Doc. No. 15. This matter is now before

the Court on plaintiff’s motion for an award of attorney’s fees pursuant

to the Equal Access to Justice Act, 28 U.S.C. § 2412. Application for

Attorney Fees under the Equal Access to Justice Act (EAJA), Doc. No. 17

(“Motion for Fees”). There has been no response to the Motion for Fees.

Standard:

The Equal Access to Justice Act (“EAJA”) 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 ... 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). The position of the United States is

“substantially justified” for purposes of the EAJA 

if it is ‘justified in substance or in the main’ –- that is,

Case: 2:12-cv-00511-ALM-NMK Doc #: 18 Filed: 12/26/13 Page: 1 of 6 PAGEID #: <pageID>
justified to a degree that could satisfy a reasonable person.” 

... [A] position can be justified even though it is not

correct, and we believe it can be substantially (i.e., for the

most part) justified if a reasonable person could think it

correct, that is, if it has a reasonable basis in law and

fact. 

United States v. Real Property Located at 2323 Charms Road, 946 F.2d 437,

440 (6th Cir. 1991) (citations omitted). 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). 

An award under the EAJA must be reasonable:

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

2

Case: 2:12-cv-00511-ALM-NMK Doc #: 18 Filed: 12/26/13 Page: 2 of 6 PAGEID #: <pageID>
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 not warrant an increase in the rate. Bryant, 578 F.3d

at 450.

Discussion: 

Plaintiff is a “prevailing party” under the EAJA because she secured

a Sentence 4 remand order. See Shalala v. Schaefer, 509 U.S. 292, 301-02

(1993). The Commissioner, who has not responded to the Motion for Fees,

has not established that the government’s litigation position was

substantially justified. The Court therefore concludes that the position

of the Commissioner was not substantially 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.). 

 

3

Case: 2:12-cv-00511-ALM-NMK Doc #: 18 Filed: 12/26/13 Page: 3 of 6 PAGEID #: <pageID>
Plaintiff seeks an award of attorneys’ fees in the amount of

$2,811.38, which represents compensation for 15.3 hours at the rate of

$183.75 per hour. Motion for Fees, Attachment A. Plaintiff has submitted

the affidavit of Eileen S. Goodin, Esq., an attorney in Columbus, Ohio

who represents Social Security claimants in federal court, Affidavit,

PAGEID # 851, who avers that her normal hourly rate in such cases is $250

per hour. Additionally, plaintiff offers evidence of the mean billing

rates in the Downtown Columbus area, where plaintiff’s attorney

practices, and in the State of Ohio. See The Economics of Law Practice

in Ohio, PAGEID # 852 et seq. Under the circumstances, the Court

concludes that plaintiff has provided satisfactory evidence that the

requested average hourly rate of $183.75 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 *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 does not seek reimbursement

of any costs or expenses apart from attorney’s fees. 

It is therefore RECOMMENDED that plaintiff’s unopposed Motion for

Fees, Doc. No. 17, be GRANTED and that plaintiff be awarded an attorney’s

fee under the Equal Access to Justice Act, 28 U.S.C. § 2412, in the

amount of $2,811.38.

4

Case: 2:12-cv-00511-ALM-NMK Doc #: 18 Filed: 12/26/13 Page: 4 of 6 PAGEID #: <pageID>
If any party seeks review by the District Judge of this Report and

Recommendation, that party may, within fourteen (14) days, file and serve

on all parties objections to the Report and Recommendation, specifically

designating this Report and Recommendation, and the part thereof in

question, as well as the basis for objection thereto. 28 U.S.C. §

636(b)(1); Fed. R. Civ. P. 72(b). Response to objections must be filed

within fourteen (14) days after being served with a copy thereof. Fed.

R. Civ. P. 72(b).

The parties are specifically advised that failure to object to the

Report and Recommendation will result in a waiver of the right to de novo

review by the District Judge and of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v.

Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of Teachers, Local 231

etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d

947 (6th Cir. 1981).

 s/Norah McCann King 

 Norah McCann King

 United States Magistrate Judge

December 26, 2013

5

Case: 2:12-cv-00511-ALM-NMK Doc #: 18 Filed: 12/26/13 Page: 5 of 6 PAGEID #: <pageID>
Case: 2:12-cv-00511-ALM-NMK Doc #: 18 Filed: 12/26/13 Page: 6 of 6 PAGEID #: <pageID>