Linden v. Colvin

Filing 23

MEMORANDUM AND ORDER that the Clerk of the Court is directed to substitute Acting Commissioner of Social Security Nancy A. Berryhill as the defendant. Plaintiff's Application for Attorney Fees Pursuant under the Equal Access to Justice Act 21 is granted. By separate document, the Court shall enter judgment for the plaintiff and against the defendant providing that the plaintiff is awarded attorney fees of $5,965.83. Ordered by Judge John M. Gerrard. (MLF, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RILEY Q. LINDEN,
Plaintiff,

7:15-CV-5005

vs.
MEMORANDUM AND ORDER
BERRYHILL,1

NANCY A.
Acting
Commissioner of the Social Security
Administration,
Defendant.
This matter is before the Court upon Plaintiff's Application for
Attorney Fees Pursuant under the Equal Access to Justice Act (filing 21). See
28 U.S.C. § 2412(d). The defendant has no objection to awarding of fees and
expenses in the amount of $5,965.83, which represents 1.8 hours of work at a
rate of $195.80 per hour, 5 hours of work at an hourly rate of $192.68, and 31
hours of work at an hourly rate of $150.2 Filing 22.
The Court has determined that plaintiff was the prevailing party in
this action, as the Commissioner's decision was reversed and the case was
remanded to the Commissioner for further proceedings; that the application
for fees was filed in a timely fashion;3 and that the position of the
1

Nancy A. Berryhill is now the Acting Commissioner of Social Security and will be

automatically substituted as a party pursuant to Fed. R. Civ. P. 25(d).
2

The maximum hourly fee of $125 specified in 28 U.S.C. § 2412(d)(1)(D)(2)(A) was adjusted

to account for inflation. See filing 21-1 at 2-3, 9.
3

An Equal Access to Justice Act application based on a district court judgment remanding

a case pursuant to sentence four of 42 U.S.C. § 405(g) must be filed no later than 30 days
after the sentence four judgment has been entered and the appeal period has run such that

Commissioner was not substantially justified because the administrative law
judge failed to develop the record and made findings that were not supported
by medical evidence. See Koss v. Sullivan, 982 F.2d 1226 (8th Cir. 1993).
Therefore, the plaintiff is entitled to an award of attorney fees.
IT IS ORDERED:
1.

The Clerk of the Court is directed to substitute Acting
Commissioner of Social Security Nancy A. Berryhill as the
defendant.

2.

Plaintiff's Application for Attorney Fees Pursuant under
the Equal Access to Justice Act (filing 21) is granted.

3.

By separate document, the Court shall enter judgment for
the plaintiff and against the defendant providing that the
plaintiff is awarded attorney fees of $5,965.83.

Dated this 26th day of July, 2017.
BY THE COURT:
John M. Gerrard
United States District Judge

the judgment is no longer appealable. See Pottsmith v. Barnhart, 306 F.3d 526, 527-28 (8th
Cir. 2002); see also Shalala v. Schaefer, 509 U.S. 292, 302 (1993); Melkonyan v. Sullivan,
501 U.S. 89, 94-97 (1991).

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