Dallas v. Social Security Administration

Filing 31

ORDER granting 30 Motion for Attorney Fees. Signed by Magistrate Judge Clifford J. Proud on 2/6/2013. (jmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

RONALD DALLAS,

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

Civil No. 11-cv-116-CJP

MEMORANDUM AND ORDER
PROUD, Magistrate Judge:
This matter is before the Court on plaintiff’s Application for Award of Attorney’s Fees
Pursuant to the Equal Access to Justice Act. (Doc. 30). Defendant has not filed a response, and
the time for doing so has now expired.
Pursuant to the Equal Access to Justice Act, 28 U.S.C. §2412(d)(1)(A), the Court shall
award attorney’s fees and expenses to a prevailing party in a civil action against the United
States, including proceedings for judicial review of agency action, unless the government’s
position was substantially justified. The hourly rate for attorney’s fees is not to exceed $125.00
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, justifies a
higher fee.” §2412(d)(2)(A).
This case was remanded to the Commissioner for further proceedings pursuant to
sentence four of 42 U.S.C. §405(g). Plaintiff is, therefore, the prevailing party. See, Shalala v.
Schaefer, 509 U.S. 292, 302 (1993). The Commissioner has not argued that his position was
substantially justified so as to defeat plaintiff’s claim under the EAJA.
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Here, counsel seeks $179.21 per hour, based on an increase in the cost of living as
calculated by the Consumer Price Index. See, Doc. 30, Ex. 3. Counsel submitted an itemized
statement at Exhibit 1, claiming a total of 20.9 hours. The Commissioner has not challenged the
appropriateness of the hourly rate, or the number of hours claimed.
The Court deems the failure to respond to plaintiff’s Application to be an admission of
the merits thereof. SDIL-LR 7.1. Accordingly, the Court finds that plaintiff is entitled to an
award of attorney’s fees and costs pursuant to the EAJA, and that the hourly rate and number of
hours claimed are reasonable.
Plaintiff’s Application for Attorney’s Fees (Doc. 30) is hereby GRANTED. The Court
awards plaintiff a total of $3,745.48 as fees. .
The amount awarded is payable to plaintiff and is subject to set-off for any debt owed by
plaintiff to the United States, per Astrue v. Ratliff, 130 S.Ct. 2521 (2010). However, in
accordance with the assignment executed by plaintiff, any amount that is not used to satisfy an
outstanding debt shall be made payable to plaintiff’s attorney.
IT IS SO ORDERED.
DATED: February 6, 2013.

s/ Clifford J. Proud
CLIFFORD J. PROUD
U.S. MAGISTRATE JUDGE

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