Walton v. Astrue
MEMORANDUM AND ORDER ON MOTION FOR ATTORNEY FEES - IT IS ORDERED: Plaintiff's Motion for Attorney Fees Pursuant to 28 U.S.C. § 2412(d)(1)(B) (filing 21 ) is granted. By separate document, the Court shall enter judgment for plaintiff and against defendant providing that plaintiff is awarded attorney fees of $5,777.60. Ordered by Judge John M. Gerrard. (TCL )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LADELL EUGENE WALTON, JR.,
MEMORANDUM AND ORDER ON
MOTION FOR ATTORNEY FEES
MICHAEL J. ASTRUE,
Commissioner of the Social Security
This matter is before the Court upon Plaintiff's motion for attorney fees
pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (filing 21). The
defendant has no objection to the awarding of fees and expenses in the
amount of $5,777.60, which represents 31.4 hours of work at $184 per hour.1
The Court has determined that plaintiff was the prevailing party in
this action, as it was remanded to the Commissioner for further action; that
the application for fees was filed in a timely fashion;2 and that the position of
the Commissioner was not substantially justified because the administrative
law judge did not include limitations in the plaintiff's residual functional
capacity to account for all the plaintiff's severe impairments. 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:
Plaintiff's Motion for Attorney Fees Pursuant to 28 U.S.C. §
2412(d)(1)(B) (filing 21) is granted.
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 filings 21 and 22-2.
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
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).
By separate document, the Court shall enter judgment for
plaintiff and against defendant providing that plaintiff is
awarded attorney fees of $5,777.60.
Dated this 18th day of October, 2012.
BY THE COURT:
John M. Gerrard
United States District Judge
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