IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Robert D. Hardy, :

Plaintiff, :

v. : Case No. 2:12-cv-715

 : JUDGE EDMUND A. SARGUS, JR.

Commissioner of Social Security, Magistrate Judge Kemp

Defendant. :

REPORT AND RECOMMENDATION

In an Opinion and Order filed on March 18, 2014, the Court

remanded this case to the Commissioner pursuant to 42 U.S.C.

§405(g), sentence four. (Doc. 29). On May 15, 2014, plaintiff

Robert D. Hardy filed an application for attorney fees under the

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

33). The Commissioner did not file a response to Mr. Hardy’s

application.

Upon review of Mr. Hardy’s application for attorney fees,

the Court noted that it was not supported by sufficient evidence. 

Consequently, on June 26, 2014, the Court issued an Order

requiring Mr. Hardy to supplement the application by submitting

evidence to satisfy the requirements of 28 U.S.C. §2412(d)(1)(B)

and the Local Civil Rules, including but not limited to his

counsel’s affidavit. (Doc. 34). In the same Order, the Court

allowed the Commissioner ten days to file a response to Mr.

Hardy’s supplemental filing. In response to this Court’s order,

on July 7, 2014, Mr. Hardy filed an affidavit of his attorney,

Paul F. Woodrow, in support of his application for attorney fees. 

(Doc. 35). Despite the passage of time for filing a responsive

memorandum, the Commissioner has not responded. The application

is now ripe for adjudication.

It is the Commissioner’s burden, in response to a motion for

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fees under the EAJA, to demonstrate that the Commissioner’s

litigation position was substantially justified. See Miller v.

United States, 831 F. Supp. 1347, 1351 (M.D. Tenn. 1993) (“The

burden lies with the government to demonstrate that its position

was substantially justified ....”); Weber v. Weinberger, 651

F.Supp. 1379, 1388 (E.D. Mich. 1987) (“with respect to an

application for attorney’s fees the Government has the burden of

showing that its position was substantially justified”). In the

absence of an opposing memorandum, the Commissioner cannot

satisfy that burden. See, e.g., Libas, Ltd. v. United States,

314 F.3d 1362, 1366 (Fed. Cir. 2003)(“when the government fails

to advance any reasoning showing its position was substantially

justified, the court ... may grant the motion by relying on the

government’s failure to timely submit any evidence or explanation

to carry its burden of proving its position was substantially

justified as an admission ...”).

Once it has been determined that a social security claimant

is entitled to fees under the EAJA, the only remaining questions

are the reasonableness of the hours expended and whether the

hourly rate falls within the statutorily-authorized range. Mr.

Hardy seeks $3445.67 for 18.05 hours of work, billed at the

following rates: $184.33 per hour for worked performed in 2012;

$192.03 per hour for work performed in 2013; and $194.70 per hour

for work performed in 2014. Nothing in the itemization of hours

expended appears unreasonable. 

As far as the hourly rate is concerned, Mr. Hardy is

requesting the statutory maximum rate of $125.00 per hour with a

cost of living adjustment for each of the years in which his

counsel performed the work. The Court of Appeals has recognized

that the EAJA permits a cost of living adjustment, and it is

within the Court’s discretion whether to award such an

adjustment. Crabtree v. Colvin, 2013 WL 1314875, *1 (S.D. Ohio

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Mar. 29, 2013). Mr. Hardy calculates the cost of living for each

year using the Consumer Price Index (“CPI”), which is “the best

indicator for computing the increase in the cost of living.” Id.

When the statutory cap of $125.00 per hour was established

in March 1996, the CPI “All Items Index” average was 155.7. Mr.

Hardy incorrectly states, however, that “the CPI All Items Index

was 151.7 in March 1996.” Although the number as referred to by

Mr. Hardy is incorrect, the “Midwest Urban” CPI for “All Items”

for “All Urban Consumers” in March 1996 indeed was 151.7. Thus,

Mr. Hardy appears to be requesting that the CPI for Midwest Urban

Consumers for All Items be used to calculate the adjustment. 

Other courts in this district have utilized the more

specific CPI index for the Midwest region in March 1996 (151.7),

as opposed to U.S. City average index for the same time (155.7),

in order to calculate a cost of living increase. See Caldwell v.

Commissioner of Social Security, 2013 WL 4830953, *6 (S.D. Ohio

Sept. 10, 2013), citing Adkins v. Commissioner of Social

Security, 2011 WL 2020647, *1 n.2 (S.D. Ohio May 24, 2011); see

also Vasquez v. Astrue, 2012 WL 3637676 (N.D. Ohio Aug. 22,

2012)(finding that the “‘Midwest Urban’ CPI ‘is reasonable and

perhaps most accurate as it represents the cost of living

increase on a local basis’”). Because the Commissioner has not

objected to Mr. Hardy’s use of that number in his calculation,

the Court will accept that the use of the regional index is

appropriate. See Adkins, 2011 WL 2020647, *1 n.2. The common

ratio of change for each year, therefore, is the following:

1.44 for 2012

(dividing 219.033, the Midwest CPI for December 2012,

by 151.7, the Midwest CPI for March 1996)

1.46 for 2013

(dividing 221.194, the Midwest CPI for December 2013,

by 151.7, the Midwest CPI for March 1996)

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1.49 for 2014

(dividing 225.485, the Midwest CPI for March 2014, by

151.7, the Midwest CPI for March 1996)

Applying the common ratio of change for each year to the $125.00

statutory cap results in the following hourly rates:

$180.00 for 2012 ($125.00 x 1.44)

$182.50 for 2013 ($125.00 x 1.46)

$186.25 for 2014 ($125.00 x 1.49)

Applying those hourly rates to the number of hours for each year

as set forth in Mr. Hardy’s “itemization of time in support of

EAJA fees” results in the following:

$747.00 for work performed in 2012 

($180.00 x 4.15 hours)

$1,752.00 for work performed in 2013 

($182.50 x 9.60 hours)

$800.88 for work performed in 2014 

($186.25 x 4.30 hours)

Adding together the fees for 2012, 2013, and 2014 results in the

following:

$ 747.00

+ $1,752.00

$ 800.88

 

 $3,299.88

Consequently, the appropriate amount of fees given the cost of

living adjustment is $3,299.88.

This total is $145.79 less than the $3445.67 requested by

Mr. Hardy because although, as noted above, Mr. Hardy uses the

CPI index for the Midwest region in March 1996 (151.7), he uses

the U.S. City average index for December 2012 (229.601), December

2013 (233.049), and March 2014 (236.293). Because there must be

a consistent index applied and courts in this district have

approved the use of the CPI index for the Midwest region, the

Court will use those numbers as set forth above and award Mr.

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Hardy the lesser amount. Further, the evidence Mr. Hardy

submitted in support of the application is satisfactory to

demonstrate that the rates, as calculated by the Court, are in

line with those prevailing in the community for similar services

by lawyers of reasonably comparable skill, experience, and

reputation. Bryant v. Commissioner of Social Security, 578 F.3d

443, 450 (6th Cir. 2009), citing Blum v. Stenson, 465 U.S. 886,

898 (1984). 

It is therefore recommended that Mr. Hardy’s application for

attorney fees under the Equal Access to Justice Act (“EAJA”)

(Doc. 33) be granted and that Mr. Hardy be awarded the sum of

$3,299.88 to be paid to counsel for Mr. Hardy unless there is an

offsetting debt owed to the United States.

 PROCEDURE ON OBJECTIONS

 If any party objects to this Report and Recommendation, that

party may, within fourteen days of the date of this Report, file

and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge

of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

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(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp 

United States Magistrate Judge 

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