Smith v. Astrue

Filing 30

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
NORTHERN DIVISION

DARRY LANELL SMITH,

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

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).

On

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
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(Doc. 27).
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.
28).

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.
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
2

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.
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.

However, he

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
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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 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
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ramps and stairs, balancing,
stooping, kneeling, crouching, and
crawling. No unprotected heights
and hazardous machinery. The
claimant has no visual or
communicative limitations.
Unskilled work.
(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
WL 193365).
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
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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
this action.
statute.

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.’”
6

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 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
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:
8

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 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

1

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).

9

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

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
enacted.’”
p. 2).

(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
rate.

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.

10

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:
220.47/152.4.

$125.00 x

Completion of this equation renders an hourly

rate of $180.83.

An hourly rate of $180.83 for 16.80 hours

equals $3,024.00.
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).

The Government

argues that payment should only go to the Plaintiff (Doc. 29,
pp. 4-5).
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).

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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 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

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