# Goettelman v. Commissioner of Social Security

> District Court, S.D. Ohio · September 28, 2022

URL: https://www.frixlaw.com/law-library/cases/10380972

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** September 28, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MARCIA L.1, Case No. 1:20-cv-202
Plaintiff, Litkovitz, M.J.

vs.

COMMISSIONER OF ORDER
SOCIAL SECURITY,
Defendant.

This matter is before the Court on plaintiff’s motion for an award of attorney’s fees and
costs under the Equal Access to Justice Act (“EAJA”) (Doc. 36), the Commissioner’s response in
opposition (Doc. 40), and plaintiff’s reply memorandum (Doc. 43).
Plaintiff protectively filed her applications for DIB and SSI in October 2015, alleging
disability since December 31, 2009. 2 The applications were denied initially and upon
reconsideration. Plaintiff, through counsel, requested and was granted a de novo hearing before
administrative law judge (“ALJ”) Renita K. Bivins. Plaintiff and a vocational expert (“VE”)
appeared and testified at the ALJ hearing on September 6, 2018. On October 3, 2018, the ALJ
issued a decision finding plaintiff has not been under a disabled since October 25, 2013. This
decision became the final decision of the Commissioner when the Appeals Council denied
review on November 1, 2019. (Tr. 3-10).
Plaintiff thereafter initiated the instant lawsuit seeking judicial review of the ALJ’s
decision pursuant to 42 U.S.C. § 405(g). (Doc. 3). On September 19, 2021, the Court ordered
that the decision of the Commissioner be reversed and remanded “for further proceedings with

1 Pursuant to General Order 22-01, due to significant privacy concerns in social security cases, any opinion, order,
judgment or other disposition in social security cases in the Southern District of Ohio shall refer to plaintiffs only by
their first names and last initials.

2 Plaintiff amended her alleged onset date of disability to October 25, 2013 at the administrative hearing. (Tr. 87).
instructions to the ALJ to re-weigh Dr. Boschuetz’s opinion in accordance with this decision; to
reassess plaintiff’s RFC, giving appropriate weight to the opinions of Dr. Boschuetz, including
an explanation on the record for the weight afforded to her opinions; to reassess plaintiff’s
subjective allegations of pain and limitations; and for further medical and vocational evidence as

warranted.” (Doc. 34 at PAGEID 9501). The Court found that “the ALJ erred by failing to
recognize that Dr. Boschuetz was a treating physician and to evaluate her opinion under the
treating physician rule.” (Id. at PAGEID 9493).
On October 11, 2021, plaintiff filed a motion for an award of attorney’s fees and costs
under the EAJA. (Doc. 36). Plaintiff seeks attorney’s fees “in the amount of $14,308.75” based
on “56.65 hours of work before this Court at the rate of $225 per hour and 12.50 hours of
assistant time at the rate of $125 per hour.” (Id. at PAGEID 9503). Plaintiff argues that she was
the prevailing party in this matter after the Court reversed and remanded the case. (Id. at
PAGEID 9505). Plaintiff further argues that the government’s position was not substantially
justified because “[t]he Magistrate Judge clearly noted that the ALJ disregarded settled

interpretation of the regulation in giving little weight to observations and conclusions of a
treating physician.” (Id., citing Doc. 34 at PAGEID 9489-92). Citing affidavits, counsel’s time
record, US inflation calculators, and data from the Ohio State Bar Association, plaintiff argues
that the amount of the fee requested is consistent with EAJA requirements. (Id. at PAGEID
9505-06, citing Doc. 36-1, Ex. A; Doc. 36-2, Ex. B; Doc. 36-3, Ex. C; Doc. 36-4, Ex. D; Doc.
36-5, Ex. E; see also Docs. 43-1, 43-2, 43-3). In sum, plaintiff argues that her motion for
attorney’s fees and costs under the EAJA should be granted because she was the prevailing party,
the government’s position was not substantially justified, and the amount of the fee requested is
consistent with EAJA requirements. (Id. at PAGEID 9506-07; see also Doc. 43).
The Commissioner opposes plaintiff’s motion for an award of attorney’s fees and costs
under the EAJA on several bases. (Doc. 40). First, the Commissioner argues that while there is
no dispute that plaintiff was the prevailing party, the government’s position was substantially
justified because the ALJ complied with the applicable regulations in analyzing Dr. Boschuetz’s

opinion by providing reasons for the weight given to the doctor and citing to specific evidence in
the record that supported her conclusions. (Id. at PAGEID 9528-31). The Commissioner
alternatively argues that even if the government’s position was not substantially justified, the
Court should reduce the amount of plaintiff’s fee request because the requested rate is
unreasonable and the hours are excessive. (Id. at PAGEID 9532).
The EAJA provides for an award of attorney fees to a party who prevails in a civil action
against the United States “when the position taken by the Government is not substantially
justified and no special circumstances exist warranting a denial of fees.” Bryant v. Comm’r of
Soc. Sec., 578 F.3d 443, 445 (6th Cir. 2009) (citing 28 U.S.C. § 2412(d)(1)(A)). The EAJA
provides:

[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).
A. Prevailing Party
There is no dispute that plaintiff was the prevailing party in this matter. Plaintiff became
the prevailing party when she obtained an order vacating the ALJ’s decision and remanding the
matter for further proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g). (Doc. 34). See
Shalala v. Schaefer, 509 U.S. 292, 300-02 (1993) (Social Security claimant who obtains a
Sentence Four judgment reversing denial of benefits and requiring further proceedings is
“prevailing party” for purposes of the EAJA). See also Turner v. Comm’r of Soc. Sec., 680 F.3d
721, 723 (6th Cir. 2012).

B. Substantial Justification
For a position to be “substantially justified,” the United States must show that its position
was “‘justified in substance or in the main’ – that is justified to a degree that could satisfy a
reasonable person. In other words, a position is substantially justified if ‘a reasonable person
could think it correct’ and ‘it has a reasonable basis in law and fact.’” Griffith v. Comm’r of Soc.
Sec., 987 F.3d 556, 563 (6th Cir. 2021) (internal citation omitted) (quoting Pierce v. Underwood,
487 U.S. 552, 565-66 (1988)). It is the government’s burden under the EAJA to prove that its
position was substantially justified. See Scarborough v. Principi, 541 U.S. 401, 414-15 (2004).
The “position of the United States” means the position taken by the government in the litigation
as well as in the underlying agency action. 28 U.S.C. § 2412(d)(2)(D). The focus is “on the

government’s position ‘as a whole.’” Griffith, 987 F.3d at 564 (quoting Amezola-Garcia v.
Lynch, 835 F.3d 553, 555 (6th Cir. 2016)). “[T]he government . . . must justify both positions
[i.e. the administrative position and the litigation position] to avoid liability for EAJA fees.”
Lewis v. Comm’r of Soc. Sec., No. 2:12-cv-490, 2014 WL 4794415, at *3 (S.D. Ohio Sept. 25,
2014) (citations omitted).
In the present case, the Court found that “Dr. Boschuetz was one of plaintiff’s treating
physicians, and the ALJ was therefore required to evaluate Dr. Boschuetz’s opinion under the
treating physician rule.” (Doc. 34 at PAGEID 9495). This fact is not contested by the
Commissioner. (Doc. 40 at PAGEID 9528-29; see also Doc. 30 at PAGEID 9460-62). As Dr.
Boschuetz was one of plaintiff’s treating physicians, the Court found that the ALJ “erred in her
finding that ‘[i]t is unclear if Ms. Boschnett is a medical expert[.]’” (Id. at PAGEID 9494, citing
Tr. 34). The Court further determined that the Commissioner’s decision lacked substantial
support in the record because the ALJ erred “by failing to recognize that Dr. Boschuetz was a

treating physician and to evaluate her opinion under the treating physician rule.” (Id. at PAGEID
9493). Specifically, the Court stated:
As a treating physician, Dr. Boschuetz’s opinion “should have been given
controlling weight absent justifiable reasons—made on the record—for discounting
th[at] opinion[].” Blakley, 581 F.3d at 408 (citing Soc. Sec. Rul. 96-2p, 1996 WL
374188, at *4-5). The ALJ failed to examine whether Dr. Boschuetz’s opinion was
well-supported by her own medical examination findings or the findings of the
other Hoxworth Clinic physicians contained in plaintiff’s available medical chart.
See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see also Gayheart, 710 F.3d at
376. Even if Dr. Boschuetz’s opinion was not entitled to controlling weight, it was
incumbent upon the ALJ to give deference to the opinion of the treating physician
and weigh Dr. Boschuetz’s opinion “using all of the factors provided in 20 C.F.R.
§ 404.1527 and 416.927.” Blakley, 581 F.3d at 408. The ALJ’s decision does not
show that she considered the requisite regulatory factors in weighing Dr.
Boschuetz’s opinion. The ALJ did not consider the length of the treatment
relationship and the frequency of examination, the nature and extent of the
treatment relationship, supportability of the opinion, consistency of the opinion
with the record as a whole, and the specialization of the treating source. Wilson,
378 F.3d at 544. See also Blakley, 581 F.3d at 408. Indeed, the ALJ failed to
acknowledge that Dr. Boschuetz was even a physician, despite evidence in the
record showing her treatment of plaintiff.

(Id. at PAGEID 9495-96). The Court determined that the matter should be reversed and
remanded for further proceedings “with instructions to the ALJ to re-weigh Dr. Boschuetz’s
opinion in accordance with this decision; to reassess plaintiff’s RFC, giving appropriate weight
to the opinions of Dr. Boschuetz, including an explanation on the record for the weight afforded
to her opinions; to reassess plaintiff’s subjective allegations of pain and limitations; and for
further medical and vocational evidence as warranted.” (Id. at PAGEID 9501).
In arguing that the position was substantially justified for purposes of plaintiff’s EAJA
fee application, the Commissioner asserts that although the ALJ failed to properly identify Dr.
Boschuetz as a treating physician, the ALJ nonetheless complied with the applicable regulations
because the ALJ provided reasons for the weight given to the doctor and cited to specific

evidence in the record that supported her conclusions. (Doc. 40 at PAGEID 9528). The
Commissioner contends that the ALJ reasonably concluded that Dr. Boschuetz’s diagnosis of
carpel tunnel syndrome was inconsistent with plaintiff’s own reports that she did not have this
condition as well as the findings of another treating physician that plaintiff did not have this
condition. (Id.). The Commissioner also argues that the ALJ reasonably concluded that Dr.
Boschuetz’s findings were inconsistent with other record evidence, such as the treatment records
from Dr. Agabegi, plaintiff’s treating physician, normal examination findings, and plaintiff’s
reports of her daily and social activities. (Id. at PAGEID 9529). The Commissioner argues that
although the Court did not find the ALJ’s analysis sufficient, the Commissioner’s position was
substantially justified. (Id., citing Brown v. Comm’r of Soc. Sec., No. 2:17-cv-851, 2020 WL

6481979, at *3 (S.D. Ohio Nov. 4, 2020)). The Commissioner contends that it “provided a
reasonable explanation why she thought the decision was supported by substantial evidence and
cited to evidence from another treating physician that supported her position.” (Id. at PAGEID
9532, citing Brown, 2020 WL 6481979, at *3). The Commissioner argues that plaintiff “should
not be awarded EAJA fees” because although “the Commissioner was not successful, [the]
position was substantially justified.” (Id.).
The Commissioner’s position lacks a reasonable basis in law and does not support a
finding of substantial justification. Not only did the ALJ fail to weigh Dr. Boschuetz’s medical
opinion under the treating physician rule, but the ALJ also failed to identify Dr. Boschuetz as a
doctor. The ALJ stated that “[i]t is unclear if Ms. Boschnett is a medical expert[.]” (Tr. 34).
Accordingly, as the ALJ failed to properly classify Dr. Boschuetz as a medical doctor, and failed
to classify Dr. Boschuetz as one of plaintiff’s treating physicians, the government’s argument
that the ALJ “complied with the regulations when analyzing [Dr. Boschuetz’s] Medical Source

Statement” is untenable and not “substantially justified” because the ALJ could not have
reasonably applied the “treating physician” rule given the ALJ’s statement that “[i]t is unclear if
Ms. Boschnett is a medical expert[.]” (Tr. 34). This Court has refused to find the government’s
position to be “substantially justified” when an ALJ fails to apply the correct legal standard.
Sturgeon v. Comm’r of Soc. Sec., No. 1:08-cv-510, 2009 WL 5194385, at *3 (S.D. Ohio Dec. 22,
2009) (citing Meyers v. Heckler, 625 F. Supp. 228, 235 (S.D. Ohio 1985)); Howard v. Heckler,
581 F. Supp. 1231, 1233-34 (S.D. Ohio 1984)). The Commissioner has not cited, and the Court
has not found, authority where the Commissioner’s position was “substantially justified” despite
the ALJ’s improper classification of a treating physician as a non-physician. It is the
government’s burden under the EAJA to prove that its position was substantially justified. See

Scarborough, 541 U.S. at 414-15. The Commissioner has not met his burden of proving
substantial justification for his position in this case. The Court, therefore, finds that the
Commissioner’s position in this matter was not substantially justified.
C. Special Circumstances
No evidence in the record suggests that special circumstances bar a fee award here, and
the Court, after carefully reviewing the record, finds none. See 28 U.S.C. § 2412(d)(1)(A).
Accordingly, the Court turns to an analysis of the amount of fees to which plaintiff’s counsel is
entitled.
D. Calculation of Fee Award
The EAJA authorizes an award of reasonable fees as follows:
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
awarded in excess of $125 per hour unless the court determines than 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).
Plaintiff requests an award of fees and costs in the amount of $14,308.75. Plaintiff’s
request for fees is based on an hourly rate of $225.00, which represents the $125.00 hourly rate
set by the EAJA adjusted for inflation, and an hourly rate of $125 for 12.50 hours spent by an
administrative assistant. Plaintiff argues that the requested hourly rate of $225.00 is not
excessive and is adjusted for inflation based on cost of living increases since the enactment of the
EAJA in March 1996. (Doc. 36). In support of the request, plaintiff has submitted evidence
which includes counsel’s time records, counsel’s affidavit, the affidavit of Scott Knox, “The
Economics of Law Practice in Ohio in 2013” attorney fee study results, and the Consumer Price
Index reported by the Bureau of Labor Statistics demonstrating an increase in the cost of living
since March 1996. (Id. at PAGEID 9508-15).
The Commissioner argues that the Court should reduce the amount of plaintiff’s fee request
“because the rate is unreasonable and the hours are excessive.” (Doc. 40 at PAGEID 9532).
The Commissioner argues that the “enhanced hourly rate of $225.00 sought by plaintiff’s
counsel and $125.00 sought by plaintiff’s assistant is not justified.” (Id. at PAGEID 9533, citing
Cochran v. Comm’r of Soc. Sec., 839 F. App’x 965 (6th Cir. 2020)). The Commissioner
contends that in line with the “‘Midwest Urban’ average of the CPI [Consumer Price Index]”, the
Court “should award Plaintiff’s attorney $197.79 an hour[], which is in line with the prevailing
rates in the community.” (Id. at PAGEID 9533-34). The Commissioner states that the Court
should “reduce the hourly rate of Plaintiff’s assistant to $40.00 an hour” because plaintiff “has
not submitted any evidence to support her requested $125.00 hourly rate for her assistant.” (Id.
at PAGEID 9534, citing Perkins v. Colvin, No. 1:14-cv-2213, 2016 WL 2927989, at *4 (N.D.

Ohio Apr. 22, 2016), report and recommendation adopted, 2016 WL 2829864 (N.D. Ohio May
13, 2016); Foy v. Colvin, No. 1:14-cv-907, 2015 WL 8003025, at *4 (N.D. Ohio Nov. 16, 2015),
report and recommendation adopted sub nom. Foy v. Comm’r of Soc. Sec., 2015 WL 8056068
(N.D. Ohio Dec. 4, 2015)).
Plaintiff requests a cost of living increase in the EAJA statutory rate from $125.00 to
$225.00 per hour for work performed in 2020 and 2021. Such a request is within the discretion
of the district court. See Begley v. Sec’y of H.H.S., 966 F.2d 196, 199, 200 (6th Cir. 1992). The
Court finds that an increase in the EAJA statutory rate is appropriate, given the nature of the case
in question and the increase in the cost of living since the amendment of the EAJA. For the
reasons discussed below, however, the Court awards less than the $225.00 hourly rate requested

by plaintiff.
In determining the hourly rate for an attorney fee award, this Court must first consider the
prevailing market rate charged by Social Security practitioners in Southwestern Ohio. See 28
U.S.C. § 2412(d)(2)(A) (the amount of EAJA fees “shall be based upon prevailing market rates
for the kind and quality of the services furnished. . . .”) (emphasis added). See also Blum v.
Stenson, 465 U.S. 886, 895 n.11 (1984) (in determining reasonableness of attorney fees court
must consider whether requested rates are in line with those prevailing in community for similar
services by lawyers of reasonably comparable skill, experience and reputation). “In 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, 445 (6th Cir.
2009) (citing Blum, 465 U.S. at 898). “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. at 450 (quoting Blum, 465 U.S. at 895 n.11).
This Court has previously required plaintiffs’ counsel to submit evidence justifying an
increase in the statutory hourly rate, including evidence of counsel’s own customary hourly rate,
the requested cost-of-living increase, and the prevailing rate in the local community charged by
Social Security practitioners of similar skill, experience, and reputation. See, e.g., Ayers v.
Astrue, No. 1:10-cv-30, 2011 WL 5506096, at *4 (S.D. Ohio Oct. 18, 2011) report and
recommendation adopted, 2011 WL 5445927 (S.D. Ohio Nov. 10, 2011) (Barrett, J.) (awarding
$170.00 per hour in EAJA fees); Sturgeon, 2009 WL 5194385, at *4-5 (awarding $170.00 per
hour in EAJA fees). In these cases, the plaintiff provided an affidavit of counsel, as well as
copies of publications showing average billable hourly rates nationally and in Cincinnati

establishing that the requested hourly rates were in line with the prevailing market rates for the
relevant geographic area. See, e.g., Ayers, 2011 WL 5506096, at *4 (noting October 2007 study
showing average billable hourly rate of $175 for the Greater Cincinnati area and 2004 report
showing mean billable hourly rate of $213 for downtown Cincinnati law firms).
In the instant case, plaintiff has submitted an excerpt from the 2013 Ohio State Bar
Association survey of attorney fee rates in support of the request for fees. (Doc. 36, Ex. E). See
also The Economics of Law Practice in Ohio in 2013, Ohio State Bar Association (found at
https://silo.tips/download/the-economics-of-law-practice-in-ohio-in-a-desktop-reference) (last
visited on September 26, 2022). This survey shows a mean hourly billing rate of $264 per hour
in Ohio for Social Security practitioners and a mean hourly rate of $297 per hour for downtown
Cincinnati in general. The Court is also permitted to consider evidence of legal fees charged in
the same geographic area, as well as take judicial notice of the historical fee reimbursement rate
in this district, in determining the prevailing market rate for the case before the Court. See

Turner, 2008 WL 2950063, at *1. See also Decorrevont v. Comm’r of Soc. Sec., No. 1:19-cv-
0137, 2020 WL 1933576, at *4 (S.D. Ohio Apr. 22, 2020), report and recommendation adopted,
No. 1:19-cv-137, 2020 WL 2395921 (S.D. Ohio May 12, 2020) (awarding $192.00 per hour);
Saxton v. Astrue, No. 3:11-cv-303, 2012 WL 3078821 (S.D. Ohio July 30, 2012) (awarding
$177.66 per hour); Wagner v. Comm’r of Soc. Sec., No. 1:10-cv-784, 2012 WL 1224736 (S.D.
Ohio Apr. 11, 2012) report and recommendation adopted, 2012 WL 1656973 (S.D. Ohio May
10, 2012) (awarding $176.49 per hour); Renneker v. Astrue, No. l:10-cv-386, 2012 WL 12696
(S.D. Ohio Jan. 4, 2012) (awarding $176.49 per hour). The EAJA rate requested by plaintiff is
somewhat higher than that previously awarded by the Court based on cost of living increases.
Plaintiff also relies on an online CPI inflation calculator that uses the Consumer Price

Index for All Urban Consumers (CPI-U) U.S. city average series for all items. However, “[t]his
Court has previously determined that the ‘Consumer Price Index–All Urban Consumers’ for the
‘Midwest Urban’ area for ‘All items’ is the proper Consumer Price Index to utilize when
calculating a cost of living adjustment.” Ayers, 2011 WL 5506096, at *4. Pursuant to the CPI
for Midwest urban consumers for all items, the hourly rate for work performed in 2020 is
$197.79 (2020 annual average CPI of 240.040 divided by the 1996 annual average CPI of 151.7
multiplied by $125.00), and the hourly rate for work performed in 2021 is $203.95 (2021 first
half average CPI of 247.511 divided by the 1996 annual average CPI of 151.7 multiplied by
$125.00). Both of these hourly rates are below plaintiff’s requested rate of $225.00 per hour for
work performed in 2020 and 2021. Consequently, the Court finds that plaintiff’s requested
hourly fee of $225.00 should be adjusted downward to reflect the appropriate cost of living
increases for Midwest urban consumers for the years 2020 and 2021. The Court therefore
awards plaintiff $197.79 per hour for work performed in 2020 and $203.95 per hour for work

performed in 2021.
The Court also considers the affidavit of Scott Knox and the affidavit of plaintiff’s
counsel, which set forth their credentials and extensive experience handling Social Security
disability cases. The Court takes judicial notice that Scott Knox has consistently practiced social
security law in this Court for numerous years.3 The Court finds this information amply
demonstrates that the hourly rates of $197.79 per hour for work performed in 2020 and $203.95
per hour for work performed in 2021 is reasonable and warranted given the cost of living
increases since enactment of the EAJA and the rates prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience, and reputation. See Bryant, 578
F.3d at 450.

In light of the above findings, the Court finds that plaintiff is entitled to attorney’s fees
for $197.79 per hour for work performed in 2020 and $203.95 per hour for work performed in
2021.
The Court next turns to a discussion of the applicable hours plaintiff’s counsel worked
relative to the Sentence Four remand, i.e., the hours to which the stated hourly rates shall be

3 See, e.g., Washington v. Comm’r of Soc. Sec., No. 1:14-cv-794, 2015 WL 8481563 (S.D. Ohio Dec. 10, 2015);
Brown v. Comm’r of Soc. Sec., No. 1:13-cv-168, 2014 WL 3543817 (S.D. Ohio July 16, 2014); Antico v. Astrue, No.
1:11-cv-640, 2012 WL 4473157 (S.D. Ohio Sept. 26, 2012), report and recommendation adopted sub nom. Antico v.
Comm’r of Soc. Sec., No. 1:11-cv-00640, 2012 WL 5438988 (S.D. Ohio Nov. 7, 2012); Puckett v. Comm’r of Soc.
Sec., No. 1:10-cv-528, 2011 WL 4368368 (S.D. Ohio Aug. 11, 2011), report and recommendation adopted, No.
1:10-cv-528, 2011 WL 4366665 (S.D. Ohio Sept. 19, 2011); Clark v. Comm’r of Soc. Sec., No. C-1-08-70, 2009 WL
1546355 (S.D. Ohio May 28, 2009).
applied. Counsel submits that 56.65 hours of attorney time was spent on this case before the
District Court. (Docs. 36, 43).
The Commissioner raises several objections to the number of hours expended by counsel.
First, the Commissioner states that counsel’s itemization of his time reflects 55.85 hours of

attorney work and not 56.65 hours. (Doc. 40 at PAGEID 9535). The Commissioner “requests
that the Court reduce the 42.75 hours spent drafting the opening and reply briefs by at least 23
hours for a total of 19.75 hours.” (Id. at PAGEID 9537). The Commissioner proposes a
“reduction of 14.25 [hours] from drafting the opening brief, 7 hours from drafting the reply[,]
and 2 hours from 3/31/21, whereby Plaintiff received, reviewed and absorbed SSA’s
Memorandum.” (Id. n.6, citing Doc. 36-2). The Commissioner claims that “the time spent on
the opening brief was not attributable to researching and developing all of the relevant
arguments.” (Id. at PAGEID 9537). The Commissioner also contends that the hours should be
reduced because the case was routine, plaintiff failed to include a summary of the relevant
medical evidence, and plaintiff did not address any of the Commissioner’s arguments in the reply

memorandum. (Id. at PAGEID 9535-37). Plaintiff argues that the requested hours are
reasonable because the record was large, and counsel had no connection with the matter before
his retention. (Docs. 36, 43).
The EAJA allows an award of reasonable attorney fees. 28 U.S.C. § 2412(d)(2)(A).
Whether fees are reasonable requires a consideration of the totality of the circumstances.
Blanchard v. Bergeron, 489 U.S. 87, 94-95 (1989). In determining the reasonableness of a fee
request, courts should consider “individual characteristics, including, but not limited to, the
complexity of the case or the novelty of the issues” and the experience of the attorney. Glass v.
Sec’y of H.H.S., 822 F.2d 19, 22 (6th Cir. 1987). The Court finds that, although the issues
presented in the case were not inordinately complex or novel, plaintiff’s attorney had a duty to
carefully review the more than 9,000 pages of the administrative transcript in this case and
thoroughly prepare his briefs. However, the Court also finds that despite the extensive
administrative record, counsel’s statement of errors was only seven pages and failed to include

any recitation or summary of the relevant medical evidence of record. (See Doc. 23). Plaintiff
argues that the requested hours are reasonable because counsel was required to utilize “pinpoint
citations to the pages of documents” within the administrative record. (Doc. 43 at PAGEID
9522). Aside from citing the ALJ’s decision and testimony from the hearing, counsel’s
statement of errors and reply memorandum include only eight citations to the administrative
record. (See Docs. 23, 33).
At the outset, the Commissioner is correct that counsel’s time records (Doc. 36-2)
incorrectly reflect 56.65 hours of attorney work. Rather, calculating the time entries yields 55.85
hours of attorney work. (Id.). Accordingly, the Court will use 55.85 hours as the baseline
number for the requested number of hours by plaintiff’s counsel.

The Court finds that 9.00 hours spent on December 10, 2020 assembling the record and
downloading USDC filings and document numbers is not reasonable. “Downloading, filing, and
saving an administrative transcript is a purely clerical or secretarial task,” and is not
compensable under the EAJA. Zupp on Behalf of A.W.E. v. Comm’r of Soc. Sec., No. 2:14-cv-
2545, 2016 WL 11509668, at *2 (S.D. Ohio Aug. 16, 2016). This is because “[d]ownloading,
filing, and saving documents does not require legal knowledge, nor is it an especially complex
task or a task traditionally performed by an attorney.” Id. (citing Dulin v. Colvin, No. 3:14-cv-
00288, 2015 WL 6689370, at *2 (S.D. Ohio Nov. 3, 2015), report and recommendation adopted,
2015 WL 7571839 (S.D. Ohio Nov. 24, 2015); Spiller v. Comm’r of Soc. Sec., 940 F. Supp. 2d
647, 651 (S.D. Ohio 2013)). Accordingly, counsel for plaintiff cannot recover for the 9 hours
spent downloading and assembling the record on December 10, 2020. This finding brings the
requested number of hours down from 55.85 to 46.85.
Second, the Court finds that the remaining 21.35 hours spent in preparation of filing a

Statement of Errors and 17.00 hours spent on reviewing the Commissioner’s response to the
Statement of Errors and drafting the reply memorandum were reasonable given the 9,000 page
administrative record. See Dent v. Astrue, No. 07-2238, 2008 WL 2278844, at *3 (W.D. Tenn.
May 30, 2008) (holding that 27.5 hours spent preparing a Statement of Errors and 10 hours on
reply brief reasonable).
The Commissioner also contends that counsel should not be compensated for 1.50 hours
of time on October 14, 2020 securing an agreement of counsel and drafting an extension of time.
(Doc. 40 at PAGEID 9538). The Court takes judicial notice that both plaintiffs and the
Commissioner routinely request extensions of time in Social Security matters in light of their
heavy caseloads and other commitments and that such extensions are routinely granted. The

Court further notes that the Commissioner requested five extensions of time in this case. (Docs.
10, 12, 15, 26, 28).
At the same time, the Court finds that 1.50 hours in attorney fees related to one perfunctory
motion for extension of time and agreement of counsel is not reasonable. Thus, although counsel
should be compensated for preparing the motion for extension of time and securing the
agreement of counsel, the amount of compensable time for these routine tasks should be reduced
by 30 minutes. This finding brings the requested number of hours down from 46.85 to 46.35.
The Commissioner does not take issue with the remaining 7.0 hours expended by counsel
in this matter.
Plaintiff also requests 12.50 hours of assistant time at an hourly rate of $125.00. (Doc. 36
at PAGEID 9503; see also Doc. 43 at PAGEID 9553-54). “Paralegal services are recoverable
under EAJA at prevailing market rates.” Dulin, 2015 WL 6689370, at *3 (citing Richlin Sec.
Serv. Co. v. Chertoff, 553 U.S. 571, 581 (2008)). The Commissioner argues that plaintiff failed

to submit any evidence to support the requested $125.00 hourly rate for assistant time. (Doc. 40
at PAGEID 9534). The Commissioner asks the Court to reduce the hourly rate of plaintiff’s
assistant to $40.00 per hour. (Id., citing Perkins v. Colvin, 2016 WL 2927989, at *1 and Foy v.
Colvin, 2015 WL 8003025, at *4).
Plaintiff fails to submit any evidence in support of his request for $125.00 per hour for
his assistant and instead relies on Zupp, 2016 WL 11509668, for the proposition that the
Commissioner’s argument to reduce the hourly rate to $40.00 is without merit. (Id.). In Zupp,
the court determined that a paralegal billing rate of $80 per hour fell within the prevailing market
rates for paralegal billing. Id. at *4. The court stated:
As outlined in [The Economics of Law Practice in Ohio in 2013], a paralegal billing
rate of $80 per hour falls within the prevailing market rates for paralegal billing in
Ohio. Ohio State Bar Ass’n, The Economics of Law Practice in Ohio in 2013, at
41, 43, 45 (2013). Reinforcing that determination is another publication cited by
Plaintiff—the 2015 National Utilization and Compensation Survey Report—which
states that the mean billing rate for paralegals in “Region 2” (composed of Illinois,
Indiana, Michigan, Wisconsin, and Ohio) in 2014 was $116 per hour. Nat’l Ass’n
of Legal Assistants, 2015 National Utilization and Compensation Survey Report §
3 (2015). Based on these publications, the Court finds that a paralegal billing rate
of $80 per hour falls within the prevailing market rates for paralegal billing in this
district.

Id. The Court agrees with the conclusion reached by the court in Zupp. Accordingly,
plaintiff may collect for the requested 12.50 hours of assistant time at a rate of $80.00 per
hour.4

4 The Commissioner “is not seeking a reduction for the 12.50 hours sought by the assistant.” (Doc. 40 at PAGEID
9538).
In light of the above findings, the Court determines that plaintiff is entitled to attorney
fees for 46.35 hours of work? at an hourly rate of $197.79 per hour for work performed in 2020
and $203.95 per hour for work performed in 2021, yielding a total of $9,287.70.° The Court also
finds that plaintiff is entitled to assistant fees for 12.50 hours of work at an hourly rate of $80.00
for a total of $1,000.00. The Court finds such fees are reasonable and should be awarded under
the EAJA. The award of $10,287.70 ($9,287.70 attorney fees plus $1,000.00 assistant fees) is
payable to plaintiff rather than plaintiff's counsel. See Astrue v. Ratliff, 560 U.S. 586 (2010).
See also Renneker, 2012 WL 12696, at *2 (noting that “assignment of an EAJA award executed
in advance of any actual award, violates the Anti-Assignment Act, 31 U.S.C. § 3272” and that to
make an award directly to the attorney before the Commissioner determines whether the plaintiff
owes a preexisting debt to the United States against which the EAJA fee award could be offset
“would jeopardize the ability of the United States to collect such debts, if any exist”). As the
award of EAJA fees may be offset against any pre-existing debt plaintiff may owe to the United
States, the fee must be made to plaintiff and not to plaintiff's attorney.
The Court therefore ORDERS that the EAJA fee petition be GRANTED as explained in
this Order and that plaintiff be AWARDED $10,287.70 in attorney fees.

Date: 9/27/2022 Heun K Kethovd-
Karen L. Litkovitz
Chief United States Magistrate Judge

5 55.85 hours of attorney work (Doc. 36-2) minus 9.50 non-compensable hours equals 46.35 hours.
6 26.85 hours in 2020 at a rate of 197.79 per hour equals $5,310.67 and 19.5 hours in 2021 at a rate of 203.95 per
hour equals $3,977.03.
17

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10380972. Public record. Not legal advice.