McNabb v. Social Security Administration

Filing 32

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs Application for Attorneys Fees Under the Equal Access to Justice Act is GRANTED. [Doc. 29.]IT IS FURTHER ORDERED that Defendant Commissioner of Social Security shall remit to Traci L. Severs attorneys fees in the amount of $5,016.76, subject to any pre-existing debt that the Plaintiff owes the United States. 29 Signed by Magistrate Judge Nannette A. Baker on 5/12/15. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JEANNE A. MCNABB,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 4:14-CV-380 NAB

MEMORANDUM AND ORDER
This matter is before the court on Plaintiff’s Petition for Attorney’s Fees Under the Equal
Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”). [Doc. 29.] Plaintiff requests attorney’s fees
in the amount of $5,016.76, at the rate of $188.60 per hour for 26.6 hours of attorney work.
Defendant Carolyn Colvin, Acting Commissioner of Social Security, does not object to
Plaintiff’s request for attorney’s fees, nor the amount requested. [Doc. 31.] Based on the
following, the Court will award Plaintiff attorney’s fees in the amount of $5,016.76 for
attorney’s fees.
I.

Factual and Procedural Background
Plaintiff Jeanne McNabb 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 disability insurance
benefits and supplemental security income under the Social Security Act.

[Doc. 1.]

On

January 27, 2015, the Court issued a Memorandum and Order and Judgment in favor of Plaintiff
pursuant to sentence four of 42 U.S.C. § 405(g). [Docs. 27, 28.] Plaintiff filed a petition for
attorney’s fees under the EAJA on March 12, 2015. [Doc. 29.] Defendant filed a response on
March 23, 2015. [Doc. 31.]

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. 28.]
Second, Plaintiff’s application for attorney’s fees is reasonable.

Plaintiff requests

attorney’s fees in the amount of $5,016.76 at the rate of $188.60 per hour for 26.6 hours of
attorney 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’s counsel attorney’s fees for 26.6 hours of 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-1171 JCH at *1 (E.D.
Mo. June 9, 2009). “The decision to increase the hourly rate is at the discretion of the district
court.” Id. at *2. “Where, as here, an EAJA petitioner presents uncontested proof of an increase

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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
2014. 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 $5,016.76 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 $5,016.76 in
attorney’s fees at the rate of $188.60 per hour.
Plaintiff has submitted an affidavit assigning any award she may receive under the EAJA
to her counsel of record. The EAJA requires that the attorney’s fee award be awarded to the
prevailing party, in this case the Plaintiff, not the Plaintiff’s attorney. Astrue v. Ratcliff, 560 U.S.
586, 591 (2010) (the term “prevailing party” in fee statutes is a “term of art” that refers to the
prevailing litigant) (citing 42 U.S.C. § 2412(d)(1)(A)). Awards of attorney fees to the prevailing
party under the EAJA are “subject to [g]overnment offset to satisfy a pre-existing debt that the
litigant owes the United States.” Ratcliff, 560 U.S. at 589. Any award for attorney’s fees must
be subject to any government offset, even if the Plaintiff has assigned her right to the award to
her attorney. Therefore, the Court will direct the Commissioner to make Plaintiff’s attorney’s
fee award payable to her attorney of record as directed below, subject to any pre-existing debt
Plaintiff owes to the United States.

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IV.

Conclusion
Based on the foregoing, the Court will award Plaintiff attorney’s fees in the amount of

$5,016.76.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Application for Attorney’s Fees Under the
Equal Access to Justice Act is GRANTED. [Doc. 29.]
IT IS FURTHER ORDERED that Defendant Commissioner of Social Security shall
remit to Traci L. Severs attorney’s fees in the amount of $5,016.76, subject to any pre-existing
debt that the Plaintiff owes the United States.
Dated this 12th day of May, 2015.

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

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