David v. Colvin

Filing 33

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Plaintiffs Application for Attorneys Fees Under the Equal Access to Justice Act is GRANTED. [Doc. 31 .] IT IS FURTHER ORDERED that Social Security Administration shall remit to Plaintiff Stephany Da vid attorneys fees in the amount of $4,109.38, subject to any pre-existing debt that the Plaintiff owes the United States at the address of The Law Offices of Daniel Parmele, 1505 East Bradford Parkway, Springfield, Missouri 65804. Signed by Magistrate Judge Nannette A. Baker on 7/11/17. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

STEPHANY DAVID,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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Case No. 2:15-CV-84 NAB

MEMORANDUM AND ORDER
This matter is before the court on Plaintiff’s Application for Attorney’s Fees Under the
Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”).

[Doc. 31.]

Plaintiff requests

attorney’s fees in the amount of $4,109.38 at the rate of $187.50 per hour for 19.25 hours of
attorney work and 5 hours of law clerk work at the rate of $100.00 per hour. Defendant Nancy
A. Berryhill, Acting Commissioner of Social Security, does not object to Plaintiff’s request for
attorney’s fees nor the amount requested. [Doc. 32.] Based on the following, the Court will
award Plaintiff attorney’s fees in the amount of $4,109.38.
I.

Factual and Procedural Background
Plaintiff Stephany David filed this action, pursuant to 42 U.S.C. § 405(g) for judicial

review of the final decision of Defendant denying Plaintiff’s application for supplemental
security income under the Social Security Act. [Doc. 1.] On March 28, 2017, the Court issued a
Memorandum and Order and a Judgment in favor of Plaintiff pursuant to sentence four of 42
U.S.C. § 405(g). [Docs. 29, 30.] Plaintiff filed a motion for attorney’s fees under the EAJA on
June 26, 2017. [Doc. 31.] Defendant filed a response on July 6, 2017. [Doc. 32.]

II.

Standard of Review
“A court shall award to a prevailing party. . . fees and other expenses . . . incurred by that

party in any civil action (other than cases sounding in tort), including proceedings for judicial
review of agency action, brought by or against the United States in any court having jurisdiction
of that action, 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).
A party seeking an award of fees and other expenses must (1) submit to the court an
application for fees and other expenses which shows that the party is a prevailing party and
eligible to receive an award; (2) provide the amount sought, including an itemized statement
from any attorney or expert witness representing or appearing on behalf of the party stating the
actual time expended and the rate at which fees and other expenses were computed; (3) allege
that the position of the United States was not substantially justified, and (4) make the application
within thirty days of final judgment of the action. 28 U.S.C. § 2412(d)(1)(B). The determination
of whether the position of the United States was substantially justified shall be determined on the
basis of the record made in the action for which the fees are sought. Id. “In sentence four
[remand] cases, the filing period begins after the final judgment (“affirming, modifying, or
reversing”) is entered by the Court and the appeal period has run so that the judgment is no
longer appealable.”

Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991) (citing 28 U.S.C.

§ 2412(d)(2)(G) (“Final judgment" means a judgment that is final and not appealable.”)).
“It is well-settled that in order to be a prevailing party for EAJA purposes, plaintiff must
have received some, but not necessarily all, of the benefits originally sought in his action.”
Stanfield v. Apfel, 985 F.Supp. 927, 929 (E.D. Mo. 1997) (citing Swedberg v. Bowen, 804 F.2d
432, 434 (8th Cir.1986)). Obtaining a sentence four judgment reversing the Secretary’s denial of

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benefits is sufficient to confer prevailing party status. Shalala v. Schaefer, 509 U.S. 292, 302
(1993).
III.

Discussion
In this action, the Court finds that Plaintiff has demonstrated that an award of attorney’s

fees under the EAJA is appropriate in this matter. First, Plaintiff is a prevailing party in this
action, because she has obtained a reversal of the Commissioner’s denial of her application for
benefits. [Doc. 30.]
Second, Plaintiff’s application for attorney’s fees is reasonable.

Plaintiff requests

attorney’s fees in the amount of $4,109.38 at the rate of $187.50 per hour for 19.25 hours of
attorney work and 5 hours of law clerk work. Plaintiff includes an itemized statement from her
attorney stating the actual time expended and the rate at which the attorney’s fees were
computed. Therefore, the Court will award Plaintiff attorney’s fees for 19.25 hours of attorney
work and 5 hours of law clerk work.
The EAJA sets a statutory limit on the amount of fees awarded to counsel at $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.”
28 U.S.C. § 2412(d)(2)(A)(ii). “In determining a reasonable attorney’s fee, the court will in each
case consider the following factors: time and labor required; the difficulty of questions involved;
the skill required to handle the problems presented; the attorney’s experience, ability, and
reputation; the benefits resulting to the client from the services; the customary fee for similar
services; the contingency or certainty of compensation; the results obtained; and the amount
involved.” Richardson-Ward v. Astrue, 2009 WL1616701, No. 4:07-CV-1301 JCH at *1 (E.D.
Mo. June 9, 2009). “The decision to increase the hourly rate is at the discretion of the district

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court.” Id. at *2. “Where, as here, an EAJA petitioner presents uncontested proof of an increase
in the cost of living sufficient to justify hourly attorney's fees of more than [$125.00] per hour,
enhanced fees should be awarded.” Johnson v. Sullivan, 919 F.2d 503, 505 (8th Cir. 1990).
Plaintiff’s counsel cited evidence from the U.S. Department of Labor, explaining the
change in the cost of living from 1996 when the $125.00 hourly limitation became effective until
2015. Defendant does not contest the hourly rate, the total fee request, nor the number of hours
itemized in the invoice. Upon consideration of these facts, the Court finds that the hourly rate,
number of hours expended, and a total fee award of $4,109.38 is reasonable. As alleged by
Plaintiff, the Court finds that the Defendant’s position was not substantially justified. Plaintiff’s
application for fees was timely filed. Therefore, the Court will award Plaintiff $4,109.38 in
attorney’s fees at the rate of $187.50 per hour for 19.25 hours of attorney work and 5 hours of
law clerk work.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Application for Attorney’s Fees Under the
Equal Access to Justice Act is GRANTED. [Doc. 31.]
IT IS FURTHER ORDERED that Social Security Administration shall remit to
Plaintiff Stephany David attorney’s fees in the amount of $4,109.38, subject to any pre-existing
debt that the Plaintiff owes the United States at the address of The Law Offices of Daniel
Parmele, 1505 East Bradford Parkway, Springfield, Missouri 65804.

Dated this 11th day of July, 2017.

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
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