Battle v. Astrue

Filing 28

MEMORANDUM OPINION AND ORDER entered, GRANTING 26 Motion for Attorney Fees (EAJA). It is ORDERED that Plaintiff be AWARDED an EAJA attorneys fee in the amount of $1,462.84, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 6/27/2011. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
LEISA BATTLE,

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

CIVIL ACTION 10-0548-M

MEMORANDUM OPINION AND ORDER

Pending before the Court is Plaintiff’s attorney’s
Application for Attorney Fees Under the Equal Access to Justice
Act (hereinafter EAJA), with supporting Documentation (Doc. 26,
and Defendant’s Response to Plaintiff’s Petition for Attorney’s
Fees (Doc. 27).

After consideration of the pertinent pleadings,

it is ORDERED that the Motion be GRANTED and that Plaintiff be
AWARDED an EAJA attorney’s fee in the amount of $1,462.84.
Plaintiff filed this action on October 7, 2010 (Doc. 1).
On April 28, 2011, the undersigned Judge entered a Memorandum
Opinion and Order, reversing the decision of the Commissioner,
and remanding this action for further proceedings (Doc. 24).
Judgment was entered in favor of Plaintiff and against Defendant
(Doc. 25).
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On May 31, 2011, William T. Coplin, Jr., counsel for
Plaintiff, filed an Application for Attorney Fees Under the
EAJA, in which he requests a fee of $1,462.84, computed at an
hourly rate of $175.19 for 8.35 hours spent in this Court (Doc.
26.

Defendant, in his Response filed on June 8, 2011, stated

that he objected to an award of attorney’s fees under EAJA as
the Government’s position in this case was substantially
justified; Defendant also stated that payment made should be
made to Plaintiff rather than to her attorney (Doc. 27).
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

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
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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.
Defendant concedes that Plaintiff became the prevailing
party when the Court remanded this action, Schaefer, 509 U.S.
300-302, but makes no argument about the timeliness of the
application; the Court finds that the petition was timely filed.
However, Defendant does not concede that the original
administrative decision denying benefits was not substantially
justified (Doc. 27).
With regard to this last condition, in order for Plaintiff
to recover attorney’s fees under the EAJA, the Government must
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
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“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 April 28, 2011
(Doc. 24), the Court found as follows:

Plaintiff’s first claim is that the
Appeals Council did not properly consider
the opinions and conclusions of the treating
physician. Battle refers to the medical
source statement and pain questionnaire
completed on April 26, 2010 by Dr. Perry
Timberlake (Doc. 13, pp. 9-11; Tr. 380-81).
This was part of the medical evidence
submitted to the Appeals Council after the
ALJ’s decision had been rendered.
It should be noted that "[a] reviewing
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court is limited to [the certified] record
[of all of the evidence formally considered
by the Secretary] in examining the
evidence." Cherry v. Heckler, 760 F.2d
1186, 1193 (11th Cir. 1985). However, “new
evidence first submitted to the Appeals
Council is part of the administrative record
that goes to the district court for review
when the Appeals Council accepts the case
for review as well as when the Council
denies review.” Keeton v. Department of
Health and Human Services, 21 F.3d 1064,
1067 (11th Cir. 1994). Under Ingram v.
Commissioner of Social Security
Administration, 496 F.3d 1253, 1264 (11th
Cir. 2007), district courts are instructed
to consider, if such a claim is made,
whether the Appeals Council properly
considered the newly-submitted evidence in
light of the ALJ’s decision. To make that
determination, the Court considers whether
the claimant “establish[ed] that: (1) there
is new, noncumulative evidence; (2) the
evidence is 'material,' that is, relevant
and probative so that there is a reasonable
possibility that it would change the
administrative result, and (3) there is good
cause for the failure to submit the evidence
at the administrative level." Caulder v.
Bowen, 791 F.2d 872, 877 (11th Cir. 1986).
In examining the action at hand, the
Court notes that Plaintiff is claiming that
the ALJ’s decision is not supported by
substantial evidence and also challenges the
Appeals Council’s decision in finding no
basis to change the ALJ’s decision (Doc. 13,
pp. 9-10). The Court further notes that the
Appeals Council denied any basis for
changing the ALJ’s opinion; it stated,
however, that it had considered the newlysubmitted evidence (Tr. 1-5). The Court has
already summarized the new evidence above
and will now examine it under Caulder.
The Court finds that Dr. Timberlake’s
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medical source opinion would render
Plaintiff incapable of performing any work
whatsoever as she is capable of sitting and
standing or walking for only two hours
during an eight-hour day (Tr. 380). This is
less than a full day’s work. Furthermore,
the doctor found her capable of lifting only
five pounds occasionally and one pound
frequently (Tr. 380). This does not satisfy
the lifting requirements for sedentary work.
Dr. Timberlake’s pain assessment renders
Battle’s ability to work seem even more
unlikely. The Court finds that this
satisfies the first prong of Caulder as the
medical evidence from Dr. Timberlake is noncumulative to the other evidence of record.
The second Caulder prong is a query as
to whether the evidence is “material,” that
is, relevant and probative so that there is
a reasonable possibility that it would
change the administrative result. In his
less than five-page decision, the ALJ
discounted Plaintiff’s testimony as
contradicted by the evidence (Tr. 38). In
weighing the medical evidence, he gave
significant weight to a non-examining State
physician with regard to Battle’s mental
abilities, great weight to a State agency
non-medical source’s opinions regarding
Plaintiff’s physical abilities, and
“significant weight to Dr. Saxon’s opinion
that there was no identifiable evidence for
a determination of disability” (Tr. 39).
The Court notes that although Dr. Saxon
did perform Range of Motion testing, he
expressed no opinion as to Battle’s ability
to perform any of the activities associated
with performing a day’s work (Tr. 176-79).
The only examining physician who provided
any such evidence was Dr. Timberlake; a
physical RFC assessment was completed by a
non-examining non-medical person which the
ALJ assigned great weight (Tr. 181-88). As
Dr. Timberlake’s report directly contradicts
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that of the non-examining non-medical
person, the Court finds that there is a
reasonable probability that the
administrative result would be different if
the ALJ had had an opportunity to view it.
The third prong of Caulder is a query
as to whether there is good cause for the
failure to submit the evidence at the
administrative level. The Court finds that
this requirement is satisfied because the
evidence did not exist at the time the ALJ
rendered his decision; he did not have the
opportunity to consider it. Though the
Appeals Council says that it considered the
evidence, the Court finds that its decision
not to review the ALJ’s decision is not
supported by substantial evidence.

(Doc. 24, pp. 11-16) (footnotes omitted).
Defendant, in his response (Doc. 27), states that there was
a reasonable basis in law and fact for the Commissioner’s
position.

Specifically, the Government first notes that the

Court “only addressed and found merit in one of Plaintiff’s
arguments . . . and thereby implicitly rejected her other three
arguments” (Doc. 27, p. 4).

The Court rejects this argument,

noting that it was unnecessary to address the remaining three
claims once it found one that had merit.
Defendant further makes the argument, previously made to
the Court, that the Appeals Council considered and properly
rejected Dr. Timberlake’s opinions (Doc. 27, pp. 6-7).
argument gains no new traction here.
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The Court, in its

The

Memorandum Opinion, found that the Appeals Council did not
properly consider Timberlake’s opinions, rendered following a
physical examination in which he completed a physical capacities
evaluation and pain questionnaire (Doc. 24, pp. 13-14).

This

conclusion was reached after noting that the ALJ relied on the
reports of a State agency non-medical source’s opinions
regarding Plaintiff’s physical abilities and an examining
physician’s report which “expressed no opinion as to Battle’s
ability to perform any of the activities associated with
performing a day’s work” (Doc. 24, p. 15; see generally pp. 1415).

The Court did not base its opinion on the fact that Dr.

Timberlake’s opinion was different, but that he provided a basis
for his opinion and that it totally contradicted the evidence on
which the ALJ relied.

The Government’s position was not

substantially justified in making the argument that the Appeals
Council had properly considered and rejected the new evidence.
Having found that the three prerequisites are 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 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
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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.

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
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vindicating similar rights.

Norman v. Housing Authority, 836

F.2d 1292, 1301 (11th Cir. 1988).
The Court, after examination of Plaintiff’s attorneys’
Application 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 8.35 hours is reasonable.
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).
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:
10

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

(11th Cir. 1988).

Where 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 further pleadings or an evidentiary hearing.

1

Id.

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

11

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
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 January 17, 2011,

$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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the complaint having been filed on October 7, 2010 (Doc. 1), and
the Court having entered its Memorandum Opinion and Order and
Judgment on April 28, 2011 (Docs. 24, 25).
January 2011 was 213.589.

The CPI-U for

Plugging the relevant numbers into

the foregoing formula renders the following equation:
213.589/152.4 which renders an hourly rate of $175.19.

$125.00 x
This

hourly rate for 8.35 hours equals $1,462.84.
In the application for Attorney’s Fees, counsel for
Plaintiff requests that any award of attorney’s fees be paid to
Plaintiff’s attorney rather than to Plaintiff (Doc. 26).

The

Government argues that payment should only go to the Plaintiff
(Doc. 27, pp. 6-9).
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
13

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 this action, Battle has specifically assigned “to
William T. Coplin, Jr., the entire amount of fees awarded to me
by this Court under the Equal Access to Justice Act, 28 U.S.C. §
2412” (Doc. 26, “Assignment”).

However, under the reasoning of

Reeves and Ratliff, the Court finds that the award should be
paid to Battle and not to her attorney.
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 $1,462.84.
DONE this 27th day of June, 2011.

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

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