IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

RON H. GANYON,

Plaintiff,

 Civil Action 2:12-cv-420

v. Judge Algenon L. Marbley

 Magistrate Judge Elizabeth P. Deavers

MICHAEL J. ASTRUE, 

COMMISSIONER OF SOCIAL SECURITY,

Defendant. 

REPORT AND RECOMMENDATION

This matter is before the Court for consideration of Plaintiff’s Motion for Award of

Attorney Fees and Costs Pursuant to the Equal Access to Justice Act. (ECF No. 15.) Defendant

filed his Response in Opposition to Plaintiff’s Motion on October 19, 2012. (ECF No. 16.) 

Plaintiff filed his Reply on October 22, 2012. (ECF No. 17.) For the reasons that follow, it is

RECOMMENDED that Plaintiff’s Motion be GRANTED. It is further RECOMMENDED

that the Court AWARD Plaintiff attorney’s fees in the amount of $2,946.43. 

I.

Plaintiff filed this action on May 15, 2012 seeking review of an adverse decision of the

Commissioner of Social Security (“Commissioner”). On August 24, 2012, Plaintiff filed a

Motion to Remand indicating the Administrative Law Judge (“ALJ”) had failed to consider key

evidence that the Commissioner omitted from the final record as an exhibit. (Mot. 2, 3-4 ECF

No. 10.) Specifically, the Commissioner failed to include school records containing

psychological evaluations that purportedly evidence Plaintiff’s disability. The ALJ specifically

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cited to the absence of these types of records in denying Plaintiff’s claim for benefits. (Id. at 5.) 

The Commissioner consented to remand, conceding that consideration of the school records was

necessary to the proper evaluation of Plaintiff’s claim. (Def.’s Resp. 1, ECF No. 12.) The Court

granted Plaintiff’s Motion to Remand on September 12, 2012. (ECF No. 13.) On October 1,

2012 Plaintiff filed the instant Motion seeking an award of attorney’s fees under the Equal

Access to Justice Act (“EAJA”). 

II.

Plaintiff seeks an award of attorney’s fees for sixteen (16) hours that his counsel worked

on this case before this Court. The EAJA provides as follows:

Except as otherwise specifically provided by statute, a court shall award to a

prevailing party other than the United States fees and other expenses, in addition to

any costs awarded pursuant to subsection (a), 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 in any court having

jurisdiction of that 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). Accordingly, a party will generally be entitled to attorney’s fees

under the EAJA when he or she is the prevailing party and the government’s position was not

substantially justified. See Townsend v. Soc. Sec. Admin., 486 F.3d 127, 129–30 (6th Cir. 2007)

(outlining requirements under the EAJA). The Commissioner “bears the burden of

demonstrating that its position was substantially justified.” Pickering v. Mukasey, 306 F. App’x.

246, 247 (6th Cir. 2009).

The EAJA limits recovery of attorney’s fees to $125 per hour unless the court concludes

that the circumstances justify a higher rate: 

The amount of fees awarded . . . shall be based upon prevailing market rates for the

kind and quality of the services furnished, except that . . . attorney fees shall not be

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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). In analyzing the EAJA, the Sixth Circuit has emphasized that the

“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). Furthermore, “[i]n requesting an increase in the hourly-fee rate,

Plaintiffs bear the burden of producing appropriate evidence to support the requested increase.”

Bryant v. Comm’r of Soc. Sec., 578 F.3d 443, 450 (6th Cir. 2009). Accordingly, the Sixth

Circuit has held that “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. (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)).

In determining the appropriate rate, the Court may allow for a cost of living adjustment to

justify an award in excess of $125 per hour. See Begley v. Sec’y of Health & Human Servs., 966

F.2d 196, 199 (6th Cir. 1992). The determination of whether a cost of living increase justifies a

fee in excess of the $125 rate is left to the Court’s discretion. Id. It is not sufficient, however,

that a party submit only the Department of Labor’s Consumer Price Index and argue that

inflation justifies an increase in fees. Bryant, 578 F.3d at 450.

III.

Plaintiff seeks an award of attorney’s fees in the amount of $2,946.43 for sixteen (16)

hours that his counsel worked on this case before this Court. (Pl.’s Mot. 4, ECF No. 15.) The

Commissioner does not contend that his position was substantially justified or that Plaintiff was

not the prevailing party within the meaning of the EAJA. Nor does he contest the

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reasonableness of the number of hours Plaintiff’s counsel worked on this case. The

Commissioner’s sole objection relates to the reasonableness of the hourly rate Plaintiff seeks to

recover. (Def.’s Op. 2, ECF No. 16.) Specifically, the Commissioner argues that the requested

hourly rate Plaintiff seeks, which calculates to an approximate rate of $184 per hour, is

excessive. (Id.)

The Undersigned concludes that Plaintiff has produced satisfactory evidence that his

requested rate comports with prevailing rates in the community. Bryant, 578 F.3d at 450. 

Plaintiff has provided an affidavit of his counsel that sets forth his counsel’s normal rate at $200

per hour. (Mot. Ex. B, ECF No. 15.) Plaintiff also submitted an affidavit of Gary J. Pandora, an

experienced Columbus attorney practicing in the area of social security, in which Mr. Pandora

asserts that fees up to $200 to $225 per hour are “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 counsel. (Id. at E.) Plaintiff also submitted a copy of the Department

of Labor’s Consumer Price Index demonstrating an increase in the cost of living. (Id. at Ex. C.) 

Additionally, Plaintiff has submitted excerpts from two independent studies to support

his request for an increased rate. One such study demonstrates that the mean billing rate in the

Downtown Columbus area, which is where Plaintiff’s counsel practices, is $266 per hour. (Id. at

Ex. F.) The study also shows that the mean billing rate for firms in Ohio with 3-5 attorneys,

which is the size of Plaintiff’s counsel’s firm, is $210 per hour, and the mean billing rate in Ohio

for attorneys with more than 25 years experience in practice is $229 per hour. (Id.) The second

study Plaintiff cites indicates that consumer lawyers in the same area charge a between $200 and

$247 per hour. (Id. at Ex. G.) Thus, Plaintiff’s requested rate of approximately $184 per hour is

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reasonable. 

The Undersigned finds the Commissioner’s contrary arguments unavailing. The

Commissioner discounts the studies Plaintiff cites because the reports do not include a special

category for attorneys practicing in the field of Social Security. (Def.’s Op. 6, ECF No. 16.) 

Thus, according to the Commissioner, Plaintiff has failed to meet his burden of establishing a

prevailing rate for attorneys undertaking Social Security appeals before this Court. (Id.) The

Commissioner further argues that the affidavits of Plaintiff’s counsel and Mr. Pandora fail to

demonstrate a prevailing market rate because “these rates are based on a contingency fee

arrangement,” which cannot justify an increase in the statutory rate. (Id.) 

The Undersigned concludes that Plaintiff has met his burden of demonstrating the

reasonableness of the requested fee. As the Sixth Circuit has recognized, a plaintiff seeking an

increase in the statutory fee need only produce “satisfactory evidence” that the requested rate is

in line with those prevailing in the Community. Bryant, 578 F.3d at 450. Although Plaintiff was

unable to produce exact evidence demonstrating the prevailing rate of attorneys who pursue

Social Security appeals before this Court, the Undersigned finds that he submitted “satisfactory

evidence” to support his request. Id. 

Accordingly, Plaintiff has provided satisfactory evidence to support his requested rate of

approximately $184.00 per hour. It is, therefore, RECOMMENDED that the Court GRANT

Plaintiff’s Motion for an Award of Attorney’s Fees. (ECF No. 15.) It is further

RECOMMENDED that the Court AWARD Plaintiff attorney’s fees under the Equal Access to

Justice Act, 28 U.S.C. § 2412, in the amount of $2,946.43. 

 

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PROCEDURE ON OBJECTIONS

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 in

question, as well as the basis for objection. 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.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the 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

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge’s report and recommendation). Even when timely objections are filed, appellate

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

Date: January 23, 2013 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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