Tyson v. Colvin

Filing 32

MEMORANDUM AND ORDER granting 30 Motion for Attorney Fees. By separate document, the Court shall enter judgment for plaintiff and against defendant providing that plaintiff is awarded attorney fees of $6,328.90. Ordered by Judge John M. Gerrard. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHERYL L. TYSON,
Plaintiff,

8:13-CV-29

vs.
MEMORANDUM AND ORDER
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.
This matter is before the Court upon Plaintiff's Motion for Award of
Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. §
2412(d) (filing 30). The defendant has no objection to the awarding of fees and
expenses in the amount of $6,328.90, which represents 33.31 hours of work at
$190 per hour.1
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 calculation and award of benefits; 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 afford controlling weight to the opinion of the plaintiff's treating
psychiatrist. See Koss v. Sullivan, 982 F.2d 1226 (8th Cir. 1993). Therefore,
the plaintiff is entitled to an award of attorney fees.

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 30-1 and 30-3.
1

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).
2

IT IS ORDERED:
1.

Plaintiff's Motion for Award of Attorney Fees Pursuant to
the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (filing
30) is granted.

2.

By separate document, the Court shall enter judgment for
plaintiff and against defendant providing that plaintiff is
awarded attorney fees of $6,328.90.

Dated this 9th day of July, 2014.
BY THE COURT:
John M. Gerrard
United States District Judge

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