Dishong v. Colvin

Filing 27

MEMORANDUM AND ORDER - The plaintiff's Motion for Award of Attorney Fees Pursuant under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (filing 23 ) 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 $8,889.87. Ordered by Judge John M. Gerrard. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KRISTINE M. DISHONG,
Plaintiff,

8:15-CV-399

vs.
MEMORANDUM AND ORDER
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.
This matter is before the Court upon the plaintiff's Motion for Award of
Attorney Fees Pursuant under the Equal Access to Justice Act, 28 U.S.C. §
2412(d) (filing 23). The defendant has no objection to awarding of fees and
expenses in the amount of $8,889.87, which represents 46.5 hours of work at
a rate of $191.18 per hour.1 Filing 24 at 7.
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;2 and that the position of the

1

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 25 at 2.
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).

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 plaintiff's Motion for Award of Attorney Fees Pursuant
under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)
(filing 23) is granted.

2.

By separate document, the Court shall enter judgment for
the plaintiff and against the defendant providing that the
plaintiff is awarded attorney fees of $8,889.87.

Dated this 25th day of October, 2017.
BY THE COURT:
John M. Gerrard
United States District Judge

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