Dearmond v. Astrue

Filing 30

MEMORANDUM OPINION AND ORDER entered re 27 Motion for Attorney Fees (EAJA). It is ORDERED that Plaintiff's Applicationbe GRANTED as set out and that Plaintiff be AWARDED an EAJA attorneys fee in the amount of $3,536.23 plus expenses of$124.96 for a total award of $3,661.19. Signed by Magistrate Judge Bert W. Milling, Jr on 5/29/2012. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

KAREN S. DEARMOND,

:
:
Plaintiff,
:
:
vs.
:
:
MICHAEL J. ASTRUE,
:
Commissioner of Social Security,:
:
Defendant.
:

CIVIL ACTION 11-0244-M

MEMORANDUM OPINION AND ORDER

Pending before the Court is Plaintiff’s Attorney’s Motion
for Award of Attorney’s Fees Pursuant to the Equal Access to
Justice Act (hereinafter EAJA), with supporting Documentation
(Doc. 27), Defendant’s Response to Plaintiff’s Attorney’s Motion
for Award of Attorney’s Fees Pursuant to the EAJA (Doc. 28), and
Plaintiff’s Response to Defendant’s Response to Plaintiff’s
Attorney’s Motion for Award of Attorney’s Fees Pursuant to the
EAJA (Doc. 29).

After consideration of the pertinent pleadings,

it is ORDERED that the Motion be GRANTED (Doc. 27) and that
Plaintiff be AWARDED an EAJA attorney’s fee in the amount of
$3,661.19.
Plaintiff filed this action on May 12, 2011 (Doc. 1).
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On

February 29, 2012, the undersigned Judge entered a Memorandum
Opinion and Order, reversing the decision of the Commissioner,
and remanding this action for further proceedings (Doc. 25).
Judgment was entered in favor of Plaintiff and against Defendant
(Doc. 26).
On May 3, 2012, Wendy A. Pierce, counsel for Plaintiff,
filed this Motion for Attorney Fees Under the EAJA, in which she
requests a fee of $3,536.24, computed at an hourly rate of
$180.42 for 19.6 hours spent in this Court; Pierce also seeks
$124.96 in copying and gas expenses in representing her client
(Doc. 27).

Defendant, in his Response filed on May 8, 2012,

stated that he objected to an award of attorney’s fees under
EAJA as the Government’s position in this case was substantially
justified (Doc. 28).
The EAJA requires a court to

award to a prevailing party . . . fees and
other expenses . . . incurred by that party
in any civil action . . . including
proceedings for judicial review of Agency
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 EAJA further requires that a
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prevailing party file an application for attorney’s fees within
thirty days of final judgment in the action.
2412(d)(1)(B).

28 U.S.C. §

The court’s judgment is final sixty days after

it is entered, which is the time in which an appeal may be taken
pursuant to Rule 4(a) of the Federal Rules of Appellate
Procedure.

See Shalala v. Schaefer, 509 U.S. 292 (1993).

As set out above, there are three statutory conditions
which must be satisfied before EAJA fees may be awarded under 28
U.S.C. § 2412.
Cir. 1990).

See Myers v. Sullivan, 916 F.2d 659, 666 (11th

First, the claimant must file an application for

fees within the thirty-day period.
a prevailing party.

Second, the claimant must be

Third, the Government’s position must not

be substantially justified.
The Court finds that Pierce’s Motion was timely filed as it
was filed in this Court on the sixty-third day after the
Memorandum Opinion and Judgment were entered.

It is also noted

that Plaintiff became the prevailing party when the Court
remanded this action.

Schaefer, 509 U.S. at 300-302.

Defendant argues, however, that the original administrative
decision denying benefits was substantially justified (Doc. 28).
With regard to this last condition, in order for Plaintiff
to recover attorney’s fees under the EAJA, the Government must
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fail “to establish that its positions were ‘substantially
justified’ or that there exist ‘special circumstances’ which
countenance against the awarding of fees.”

Myers, 916 F.2d at

666 (interpreting and referring to 28 U.S.C. § 2412(d)(1)(A)).
That means that the Government must show that there was a
“reasonable basis both in law and fact” for the positions it
took.

Myers, 916 F.2d at 666 (citations omitted).

The Court

notes that “[a]n examination of whether the government’s
position was substantially justified encompasses an evaluation
of both the agency’s preligitation conduct and the subsequent
litigation positions of the Justice Department. . . . Unless the
government can establish that all of its positions were
substantially justified, the claimant is entitled to receive
attorney’s fees.”
omitted).

Myers, 916 F.2d at 666 n.5 (citations

Though Defendant bears the burden of showing that its

position was substantially justified, “[t]he fact that the
government lost its case does not raise a presumption that the
government’s position was not substantially justified.”

Ashburn

v. United States, 740 F.2d 843, 850 (11th Cir. 1984).
In the Memorandum Opinion and Order dated February 29,
2012, the Court stated as follows:

The Court finds that the ALJ’s finding
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of Plaintiff’s residual functional capacity
(hereinafter RFC) is inconsistent with the
hypothetical questions posed of the VE.
Specifically, although the ALJ’s
hypothetical included the option to stand or
sit and the need for one-to-two step
instructions, the ALJ specified light work
as it is defined in the DOT (Tr. 53). Light
work, under the social security regulations,
specifically allows for lifting up to twenty
pounds. 20 C.F.R. § 404.1567(b) (2011).
The ALJ’s RFC is inconsistent with the
questions posed to the VE. The Eleventh
Circuit Court of Appeals has held that an
ALJ's failure to include severe impairments
suffered by a claimant in a hypothetical
question to a VE to be reversible error
where the ALJ relied on that expert's
testimony in reaching a disability decision.
Pendley v. Heckler, 767 F.2d 1561 (11th Cir.
1985). Although the ALJ’s error in this
action was not the failure to include severe
impairments, the failure to properly present
Dearmond’s RFC to the VE is no less serious.
With this finding, the Court cannot say
that the VE’s—and, therefore, the ALJ’s—
conclusion that Plaintiff is capable of
performing the jobs of parking lot attendant
and gate guard is supported by substantial
evidence as they are both light work jobs.

(Doc. 25, pp. 15-16).
The Government, in his response (Doc. 28), states that
there was a reasonable basis in law and fact for the
Commissioner’s position.

Specifically, even though the

Defendant admits that the ALJ, in his hypothetical to the
Vocational Expert, erred in not limiting the individual to
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lifting and carrying no more than fifteen pounds, he argues that
the error was harmless because the VE’s answer might have still
been correct as the two jobs listed would probably not require
lifting twenty pounds (Doc. 28, p. 3).

The Government has

further argued that the ALJ “reasonably interpreted” a physical
capacities evaluation form completed by a physician that was
unclearly completed (Doc. 28, pp. 3-4).
The Court finds no merit in either of the Government’s
arguments.

With regard to the first argument (improper

hypothetical), while the VE’s conclusions may have been the same
if he had been posed a proper hypothetical, the Court does not
know because an improper hypothetical question was actually
posed.

The Court is not going to speculate as to what an expert

might have stated under different circumstances.

As for the

second argument, if the ALJ was unclear as to what the
physician’s intent was in completing a form, he should have
asked the doctor what he meant.

The Court will not condone the

ALJ’s guessing as to what the evidence is.

The Court finds that

the Government’s position was not substantially justified.
Having found that the three prerequisites have been
satisfied, the Court will now discuss the fee to be awarded in
this action.

The EAJA, like 42 U.S.C. § 1988, is a fee-shifting
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statute.

The Supreme Court has indicated that “‘the most useful

starting point for determining the amount of a reasonable fee is
the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.’”

Watford v. Heckler,

765 F.2d 1562, 1586 (11th Cir. 1985 (EAJA) (quoting Hensley v.
Eckerhartt, 461 U.S. 424, 433 (1983) (§ 1988)).

In describing

this lodestar method of calculation, the United States Supreme
Court stated:

This calculation provides an objective basis
on which to make an initial estimate of the
value of a lawyer’s services. The party
seeking an award of fees should submit
evidence supporting the hours worked and the
rates claimed. Where the documentation of
hours is inadequate, the district court may
reduce the award accordingly. The district
court also should exclude from this initial
fee calculation hours that were not
“reasonably expended.” . . . Cases may be
overstaffed, and the skill and experience of
lawyers vary widely. Counsel for the
prevailing party should make a good-faith
effort to exclude from a fee request hours
that are excessive, redundant, or otherwise
unnecessary, just as a lawyer in private
practice ethically is obligated to exclude
such hours from his fee submission. In the
private section, ‘billing judgment’ is an
important component in fee setting. It is
no less important here. Hours that are not
properly billed to one’s client also are not
properly billed to one’s adversary pursuant
to statutory authority.

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Hensley, 461 U.S. at 434 (citations omitted).
professional judgment in billing under EAJA.

Counsel must use
A lawyer should

only be compensated for hours spent on activities for which he
would bill a client of means who was seriously intent on
vindicating similar rights.

Norman v. Housing Authority, 836

F.2d 1292, 1301 (11th Cir. 1988).
The Court, after examination of Pierce’s Motion and
supporting documentation, and after consideration of the
reasonableness of the hours claimed, finds that Plaintiff’s
counsel’s time expended in prosecuting this action for a total
of 19.6 hours is reasonable (Doc. 27, Pierce Affidavit).
With respect to a determination of the hourly rate to apply
in a given EAJA case, the express language of the Act provides
in pertinent part as follows:

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, justified a higher
fee.

28 U.S.C. § 2412(d)(2)(A) (Supp. 1997).
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In Meyer v. Sullivan, 958 F.2d 1029 (11th Cir. 1992), the
Eleventh Circuit determined that the EAJA establishes a two-step
analysis for determining the appropriate hourly rate to be
applied in calculating attorney’s fees under the Act:

The first step in the analysis, . . . is to
determine the market rate for “similar
services [provided] by lawyers of reasonably
comparable skills, experience, and
reputation.” . . . The second step, which is
needed only if the market rate is greater
than $75 per hour, is to determine whether
the court should adjust the hourly fee
upward . . . to take into account an
increase in the cost of living, or a special
factor.
Meyer, 958 F.2d at 1033-34 (citations and footnote omitted).1
The applicant bears the burden of producing satisfactory
evidence that the requested rate is in line with prevailing
market rates.

NAACP V. City of Evergreen, 812 F.2d 1332, 1338

(11th Cir. 1987).

Satisfactory evidence at a minimum is more

than the affidavit of the attorney performing the work.
Stenson, 465 U.S. 886, 895 n.11 (1984).

Blum v.

Where the fees or time

claimed seem expanded or there is lack of documentation or
testimony in support, the court may make an award on its own
experience.

Norman v. City of Montgomery, 836 F.2d 1292, 1303

1

Subsequent to Meyer, the cap was raised from $75.00 per hour to

9

(11th Cir. 1988).

Where the documentation is inadequate, the

court is not relieved of its obligation to award a reasonable
fee, but the court traditionally has had the power to make such
an award without the need of further pleadings or an evidentiary
hearing.

Id.

Since 2001, the prevailing market rate in the Southern
District of Alabama has been $125.00 per hour.

See, e.g., Smith

v. Massanari, Civil Action 00-0812-P-M (S.D. Ala. October 25,
2001); and Square v. Halter, Civil Action 00-0516-BH-L (S.D.
Ala. April 12, 2001).

However, in 2007, in an action before

Judge Cassady, a formula was approved and used to adjust the
prevailing market hourly rate to account for the ever-increasing
cost of living.

Lucy v. Barnhart, Civil Action 06-0147-C (S.D.

Ala. July 5, 2007 (Doc. 32)).

As set out in Lucy, the formula

to be used in calculating all future awards of attorney’s fees
under the EAJA is:

“‘($125/hour) x (CPI-U Annual Average “All

Items Index,” South Urban, for month and year of temporal
midpoint2)/152.4, where 152.4 equals the CPI-U of March 1996, the

$125.00 per hour, as set out above in 28 U.S.C. § 2412(d)(2)(A).
2
“The appropriate endpoint for computing the cost of living
adjustment is the temporal midpoint of the period during which the
compensable services were rendered[;] . . . [t]he temporal midpoint is
calculated by computing the number of days from the date the claim
was prepared until the date of the Magistrate or District Judge’s
Order and Judgment.” Lucy v. Barnhart. Civil Action 06-0147-C (S.D.
Ala. Doc. 31, at p. 3).

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month and year in which the $125 cap was enacted.’”
32, at p. 11) (quoting Lucy, Doc. 31, at p. 2).

(Lucy, Doc.

The undersigned

also adopts this formula in EAJA fee petition actions for use in
arriving at the appropriate hourly rate.
The temporal midpoint in this action was October 5, 2011,
the complaint having been filed on May 12, 2011 and the Court
having entered its Memorandum Opinion and Order and Judgment on
February 29, 2012.

The CPI-U for October 2011 was 219.969.

http://www.bls.gov/ro3/fax_9132.htm.

See

Plugging the relevant

numbers into the foregoing formula renders the following
equation:

$125.00 x 219.969/152.4.

renders an hourly rate of $180.42.

Completion of this equation
This hourly rate for 19.6

hours equals $3,536.23.
The Court notes that Pierce has also requested, as part of
her fee, expenses totaling $124.96 (Doc. 27, p. 5).

These costs

were comprised of $88.00 in copying expenses and $36.96 in gas
expenses.

The Eleventh Circuit Court of Appeals has held that

EAJA allowed for reimbursement of “fees and other expenses . . .
which [are] found by the court to be necessary for the
preparation of the party’s case.”

Jean v. Nelson, 863 F.2d 759,

777 (11th Cir. 1988), aff’d sub nom. Commissioner, I.N.S. v.
Jean, 496 U.S. 154 (1990)(quoting 28 U.S.C. § 2412(d)(2)(A)).
11

The Court finds that the requested expenses of $124.96 were
necessary for the preparation of Dearmond’s case and are
appropriately reimbursed.
As noted earlier, EAJA allows a Court to make an “award to
a prevailing party.”

28 U.S.C. § 2412(d)(1)(A).

In Panola Land

Buying Ass’n v. Clark, 844 F.2d 1506, 1509 (11th Cir. 1988), the
Eleventh Circuit Court of Appeals stated that “[i]t is readily
apparent that the party eligible to recover attorneys’ fees
under the EAJA as part of its litigation expenses is the
prevailing party.”

See also Reeves v. Astrue, 526 F.3d 732, 738

(11th Cir. 2008), cert. denied, 129 S.Ct. 724 (2008) (“We
conclude the EAJA means what it says:

attorney’s fees are

awarded to the ‘prevailing party,’ not to the prevailing party’s
attorney”).

The United States Supreme Court, in the unanimous

decision of Astrue v. Ratliff, 130 S.Ct. 2521, 2524 (2010), held
“that a § 2412(d) fees award is payable to the litigant and is
therefore subject to a Government offset to satisfy a preexisting debt that the litigant owes the United States,”
removing any doubt as to whom the award should be paid.
In conclusion, it is ORDERED that Plaintiff’s Application
be GRANTED as set out above and that Plaintiff be AWARDED an
EAJA attorney’s fee in the amount of $3,536.23 plus expenses of
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$124.96 for a total award of $3,661.19.
DONE this 29th day of May, 2012.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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