Smith v. Astrue
MEMORANDUM OPINION AND ORDER GRANTING 28 Motion for Attorney Fees (EAJA). It is ORDERED that Plaintiff be AWARDED an EAJA attorney's fee in the amount of $3,024.00, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 4/5/2012. (clr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
DARRY LANELL SMITH,
MICHAEL J. ASTRUE,
Commissioner of Social Security,:
CIVIL ACTION 11-0203-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. 28),
and Defendant’s Response to Plaintiff’s Petition for Attorney’s
Fees (Doc. 29).
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 $3,024.00.
Plaintiff filed this action on April 26, 2011 (Doc. 1).
December 19, 2011, the undersigned Judge entered a Memorandum
Opinion and Order, reversing the decision of the Commissioner,
and remanding this action for further proceedings (Doc. 26).
Judgment was entered in favor of Plaintiff and against Defendant
On March 15, 2012, R. Michael Booker, counsel for
Plaintiff, filed an Application for Attorney Fees Under the
EAJA, in which he requests a fee of $3,024.00, computed at an
hourly rate of $180.00 for 16.80 hours spent in this Court (Doc.
Defendant, in his Response filed on March 29, 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; Defendant also stated that payment made should be
made to Plaintiff rather than to his attorney (Doc. 29).
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.
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
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.
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, and that the fee motion was timely filed.
does not concede that the original administrative decision
denying benefits was not substantially justified (Doc. 29).
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
“reasonable basis both in law and fact” for the positions it
Myers, 916 F.2d at 666 (citations omitted).
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
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.”
v. United States, 740 F.2d 843, 850 (11th Cir. 1984).
In the Memorandum Opinion and Order dated December 19, 2011
(Doc. 26), the Court found as follows:
The ALJ determined that Plaintiff was
capable of performing a reduced range of
light work. More specifically, the ALJ
found as follows:
[T]he claimant can lift or carry
up to 20 pounds occasionally and
10 pounds frequently; limited use
of right hand for simple grasping,
fine manipulation and fingering;
limited reaching overhead,
particularly with right arm and
shoulder; occasional climbing
ramps and stairs, balancing,
stooping, kneeling, crouching, and
crawling. No unprotected heights
and hazardous machinery. The
claimant has no visual or
(Tr. 14). The Court notes that this RFC
mirrors the RFC completed by Sarah Singleton
(cf. Tr. 184-91), a report completed by nonmedical personnel working for the SSA that
was not even acknowledged by the ALJ. The
Government correctly notes that the ALJ
cannot rely on this evidence in making his
decision (Doc. 20, pp. 8-9) (citing Program
Operations Manual System DI214510.050C, 2001
The Court notes that the ALJ did rely,
however, on the opinion of Dr. Whitman, a
non-examining physician whose only
contribution to the record was a statement
that Plaintiff could perform light work.
“This Court has held on a number of
occasions that the Commissioner's fifth-step
burden cannot be met by a lack of evidence,
or by the residual functional capacity
assessment of a non-examining, reviewing
physician, but instead must be supported by
the residual functional capacity assessment
of a treating or examining physician.”
Coleman v. Barnhart, 264 F.Supp.2d 1007,
1010 (S.D. Ala. 2003). The ALJ’s conclusion
that Plaintiff is capable of performing jobs
which exist in the national economy based on
the opinions of a non-examining physician is
not supported by substantial evidence.
The Court understands the Government’s
argument that the ALJ determines the RFC and
that he can reject opinions that he does not
think are supported by substantial evidence.
Nevertheless, for the ALJ to rely on the
opinion of a non-examining physician whose
only finding is that Smith can perform light
work, while rejecting the opinion of the
only examining physician, a specialist, who
the ALJ himself referred to as the treating
physician, fails to meet the requirement of
Perales and Brady.
(Doc. 26, pp. 6-8).
Defendant argues that there was a reasonable basis in law
and fact for the Commissioner’s position (Doc. 29).
Specifically, the Government seems to be arguing that because
the ALJ only partially rejected the opinion of the examining
physician before adopting, wholesale, the opinion of the nonexamining physician whose only contribution was the bare
assertion that Smith could do light work, its position is
substantially justified (Doc. 29, p. 4).
Not only was the ALJ’s
decision not supported by substantial evidence, the Government’s
decision to go forward with this lack of evidence, in light of
past decisions, is not substantially justified.
Having found that the three prerequisites have been
satisfied, the Court will now discuss the fee to be awarded in
The EAJA, like 42 U.S.C. § 1988, is a fee-shifting
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)).
this lodestar method of calculation, the United States Supreme
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
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 16.8 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
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:
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
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
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).
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
Norman v. City of Montgomery, 836 F.2d 1292, 1303
(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
Subsequent to Meyer, the cap was raised from $75.00 per hour to
$125.00 per hour, as set out above in 28 U.S.C. § 2412(d)(2)(A).
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
United States Magistrate 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
(Lucy, Doc. 32, at p. 11) (quoting Lucy, Doc. 31, at
The undersigned also adopts this formula in EAJA fee
petition actions for use in arriving at the appropriate hourly
“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.
The temporal midpoint in this action was August 22, 2011,
the complaint having been filed on April 26, 2011 (Doc. 1), and
the Court having entered its Memorandum Opinion and Order and
Judgment on December 19, 2011 (Docs. 26-27).
August 2011 was 220.47.
The CPI-U for
Plugging the relevant numbers into the
foregoing formula renders the following equation:
Completion of this equation renders an hourly
rate of $180.83.
An hourly rate of $180.83 for 16.80 hours
The Court notes that, in the application for Attorney’s
Fees, counsel for Plaintiff requests that any award of
attorney’s fees be paid to Plaintiff, in care of his attorney to
be held in trust for Smith (Doc. 28, p. 2).
argues that payment should only go to the Plaintiff (Doc. 29,
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
Ala. Doc. 31, at p. 3).
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
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, Smith has specifically directed that
“payment of these EAJA fees be sent to me c/o my attorney, R.
Michael Booker” (Doc. 28, p. 5).
Under the reasoning of Reeves
and Ratliff, the Court finds that the award should be paid to
Smith and not to his 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 $3,024.00.
DONE this 5th day of April, 2012.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?