1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0288p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

B OBBY J. C OURSEY , Plaintiff-Appellant ,

v

.

C OMMISSIONER OF S OCIAL S ECURITY , Defendant-Appellee

. ┐ │ │ │ │ │ │ │ ┘ No. 16-5336

Appeal from the United St ates District Court for the Western District of Kentucky at Bowling Green. No. 1:15-cv-00005—H. Brent Brenne nstuhl, Magistrate Judge. Decided and Filed: December 14, 2016 Before: BOGGS, GILMAN, a nd DONALD, Circuit Judges.

_________________ COUNSEL

ON BRIEF: Paul B. Eaglin, OLIN SKY LAW GROUP, Syracuse, New York, for Appellant. Brian J. Alesia, SOCIAL SECURITY ADMINIS TRATION, Chicago, Illinois, for Appellee.

_________________ OPINION

_________________ RONALD LEE GILMAN, Circuit J udge. Following the successful reversal of the Social Security Administration’s denial of his Soci al Security benefits, Bobby J. Coursey sought attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. Coursey requested an hourly rate of $185.18, which exceeds the EAJA’s presumptive statutory cap of $125 per hour. The district court granted Course y’s request in part by allowing the rate of $140 

### >No. 16-5336 Coursey v. Comm’r of Soc. Sec. Page 2

per hour. Coursey appeals, seeking the full reques ted rate. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND
When Coursey’s application for Social Secu rity benefits was denied by the Social Security Administration, he sought judicial review of the Administration’s decision in the district court. The case was resolved when the court granted a joint motion to reverse the Administration’s decision. Judgment in favor of Coursey was entered in September 2015.
Coursey then filed a motion for attorney f ees. Although the EAJA sets the presumptive maximum hourly rate an attorney may recover at $125, see 28 U.S.C. § 2412(d)(2)(A), Coursey sought $185.18 per hour. Coursey submitted the Bu reau of Labor Statistics’ Consumer Price Index (CPI) for the Midwest, which documents that the EAJA’s statutory cap amount would, when adjusted for the cost of living in the Midwest in 2015, be the equivalent of $185.18.
The Commissioner opposed the motion on the ground that the evidence Coursey produced in support of his motion wa s insufficient to justify an incr eased hourly rate . Citing this court’s decision in Bryant v. Commissioner of Social Security , 578 F.3d 443 (6th Cir. 2009), the Commissioner argued that a party must put forward evidence th at the requested rate is “in line with those prevailing in the community for simila r services by lawyers of reasonably comparable skill, experience, and reputation” in order to obta in attorney fees in excess of the EAJA cap. Id. at 450 (quoting Blum v. Stetson , 465 U.S. 886, 895 n.11 (1984)). Coursey responded by citing to cases outside this circuit and referring to Glenn v. Commissioner of Social Security , 763 F.3d 494, 497 n.3 (6th Cir. 2014), in which this co urt commented that fees of $171.06 and $173.01 per hour requested by Coursey’s counsel, Howard Olinsky, for work in 2012 and 2013, respectively, were “modest” and “reasonable.” Id. The response included an affidavit by Olinsky that described his qualifications and st ated his normal contingent hourly rate in Syracuse, New York.
In March 2016, the district cour t granted in part Coursey’s mo tion for attorney fees. The court concluded that the CPI and Olinsky’s affida vit were insufficient to justify the requested hourly rate. Ultimately, however, the court appr oved an award of $140 per hour, consistent withNo. 16-5336 Coursey v. Comm’r of Soc. Sec. Page 3

other recent cases in that district awarding that amount for EAJA attorney-fee requests in Social Security cases. This timely appeal followed.

II. ANALYSIS

A. Standard of review

We review a district court’s award of a ttorney fees using the abuse-of-discretion standard. Minor v. Comm’r of Soc. Sec. , 826 F.3d 878, 882 (6th Cir. 2016). “A district court abuses its discretion when it reli es on clearly erroneous findings of fact, when it improperly applies the law, or uses an erroneous legal standard.” Glenn , 763 F.3d at 497 (quoting Stough v. Mayville Cmty. Sch. , 138 F.3d 612, 614 (6th Cir. 1998)).
B. Attorney fees under the EAJA
The EAJA provides, in pertinent part, that a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that pa rty in any civil action . . . , including proceedings for judicial review of agen cy 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). “[F]ees and other expenses” are defined by the EAJA to include “reasonable attorney fees.” Id. § 2412(d)(2)(A). The EAJA goes on to provide that [t]he amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of th e 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 attorney s for the proceedings involved, justifies a higher fee.

Id. This court has held that, “[i] n requesting an increase in the hour ly-fee rate, Plaintiffs bear the burden of producing appropriate evidence to support the reque sted increase.” Bryant , 578 F.3d
at 450.No. 16-5336 Coursey v. Comm’r of Soc. Sec. Page 4

Coursey argues that the dist rict court abused its discre tion by conflating the prevailing market rate and cost-of-living adjustment (COLA) analyses. In particular, Coursey contends in his brief that [a] plain reading of the stat ute reveals that the “amount of fees awarded under this subsection” shall be the “prevailing market rate” so long as the ‘prevailing market rate” does not exceed $125 pe r hour, in which case the st atute caps the rate at $125 per hour. The statute then presents an exception, and that exception has absolutely nothing to do with the “pre vailing market rate,” because “the prevailing market rate” has already been established (whether below or above the statutory cap of $125 per hour). (Internal citations omitted.)
According to Coursey, the EAJA does not pe rmit a higher attorney’s fee than $125 per hour, even if the prevailing market rate is highe r than $125, unless either the COLA or a special factor justifies a higher fee. He consequently concludes that his submission of the CPI alone should have been sufficient to just ify a higher fee because it show s an increase in the cost of living. Coursey refers to decisions from several other circuits to suppor t this reading of the statute and emphasizes the Seventh Circuit’s recent decision in Sprinkle v. Colvin , 777 F.3d 421 (7th Cir. 2015) (holding that the CPI alone is sufficient to establish an increase in the cost of living).
We have no disagreement with Coursey’s interp retation of the statute. The statute clearly provides that attorney fees under the EAJA must be in line with the prevai ling market rate, but cannot exceed $125 per hour unless eith er the increased cost of living or a special factor justifies a higher fee. Nonetheless, the di strict court did not abuse its di scretion in awardi ng a fee above the statutory cap of $125 per hour but below Coursey’s requested fee of $185.18 per hour.
This court requires a plaintiff seeking an atto rney’s fee of greater than $125 per hour to show by competent evidence both that the cost of living justifies a higher rate and , as the statute itself requires, that the fee is “i n line with those prevailing in th e community for similar services by lawyers of reasonably comparable sk ill, experience, and reputation.” Bryant , 578 F.3d at 450 (quoting Blum v. Stenson , 465 U.S. 886, 895 n.11 (1984)). Accordingly, this court has held that the CPI alone is insufficient to justify an atto rney’s fee higher than the $125 per hour statutoryNo. 16-5336 Coursey v. Comm’r of Soc. Sec. Page 5

cap. Id. ; Clark v. Comm’r of Soc. Sec. , No. 16-5393, 2016 WL 6958640 (6th Cir. Nov. 29, 2016) (unpublished); Sakhawati v. Lynch , 839 F.3d 476, 481 (6th Cir. 2016). The CPI alone is insufficient because, although it addresses the cost-o f-living factor to overc ome the statutory cap, it does nothing to show whether the prevailing rate in the relevant community is higher than $125 per hour. As the Seventh Circuit has explained: While the CPI suffices as proof of an increa se in the cost of living, claimants must still produce satisfactory evidence that the in crease in the cost of living “justifies” the rate requested. So claimants must pr oduce evidence that th e rate they request is in line with those prevailing in the co mmunity for similar services by lawyers of comparable skill and experience. Sprinkle , 777 F.3d at 428 (citation omitted).
In this case, Coursey established that th e cost of living had, in fact, increased significantly. He did not, however , provide any evidence of what the prevailing market rate in the local community would have been—despite the statute’s expre ss requirement that the amount of fees awarded under the EAJA be “ based upon prevailing market rates for the kind and quality of the services furnished . . . .” 28 U.S.C. § 2412(d)(2)(A) (emphasis adde d). The affidavit that Coursey submitted, which addressed only his attorney’s qualifications and normal contingent hourly rate in Syracuse, New Yor k, is insufficient to establish a basis on which the district court could justify the requested rate in Bowling Green, Kentucky. Id.
Contrary to Coursey’s argument that the district court confla ted the prevailing market rate and COLA analyses, the court cl early distinguished the two requi rements. And it correctly concluded that, to obtain an a ttorney-fee award in excess of the statutory cap, Coursey needed to submit evidence to support a finding of a change in the cost of living and evidence to support a finding that a fee above the $125-pe r-hour statutory cap was in line with prevailing rates in the community. Coursey submitted evidence on the first point, but no evidence on the second. The court accordingly did not abuse its discre tion in denying his requested hourly rate.

Nor did the district court abus e its discretion when it awarde d an attorney’s fee based on $140 per hour. The court, giving “Coursey th e benefit of the doubt,” properly relied on evidence—in the form of judicial findings in pr evious cases—that the prevailing market rate forNo. 16-5336 Coursey v. Comm’r of Soc. Sec. Page 6

similar services within its venue was $140 per hour. See Neff v. Colvin , No. 3:13-CV-638-CHL, 2015 WL 796604, at *4 (W.D. Ky. Feb. 25, 2015); see also Clark , 2016 WL 6958640.

III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.