Powell v. Commissioner of the Social Security Administration

Filing 43

ORDER granting 40 Motion for Attorney Fees in the amount of $4,095.00. The court orders that the Commissioner issue the award in the name of the plaintiff and forward the check to plaintiff's counsel at his office. Signed by Honorable Timothy M Cain on 4/11/2013.(gnan )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Jerry Powell,
Plaintiff,
v.
Carolyn W. Colvin, Acting
Commissioner of Social Security,1
Defendant.

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Civil Action No. 4:11-2913-TMC

ORDER

This matter comes before the court on the plaintiff, Jerry Powell’s (“Powell”) motion for
an award of attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412.
(Dkt. No. 40.) Powell seeks a total award of $4,275.00, representing 9.5 attorney hours and 29
paralegal hours2 at an hourly rate of $180.00 per hour of attorney time and $90.00 per hour of
paralegal time. The Commissioner objects to an award under the EAJA, contending that her
position on appeal was substantially justified. (Dkt. No. 41.)
Under the EAJA, a court may award attorney’s fees to a party prevailing against the
government, unless the government can show that its position was substantially justified. 28
U.S.C. § 2412(d)(1)(A). Substantially justified, in this sense, means “reasonable . . . both in law
and in fact,” such that “a reasonable person could think it correct.” Pierce v. Underwood, 487
U.S. 552, 565-66 (1988).
Powell originally brought this action seeking judicial review of the Commissioner’s
denial of Powell’s request for disability insurance benefits and supplemental security income.

1

Carolyn W. Colvin became the Acting Commissioner of the Social Security Administration on February
14, 2013. Pursuant to Federal Rule of Civil Procedure 25(d), Colvin should be substituted for Michael J.
Astrue as the defendant in this action.
2
This calculation includes thirty minutes of attorney time and one and one half hours of paralegal time
spent replying to the Commissioner’s response to Powell’s motion for fees.

During the administrative proceedings, an Administrative Law Judge (“ALJ”) denied Powell’s
request, finding that he was not disabled partially based on certain evidentiary gaps in the record.
To fill those gaps, when Powell appealed, he submitted additional evidence to the Appeals
Council. The Appeals Council considered the additional evidence, making it part of the record,
but denied Powell’s request for review, finding that the evidence did not undermine the ALJ’s
decision.
On review, this court found that, considering the record as a whole, including the new
evidence, it could not determine whether or not the ALJ’s decision was supported by substantial
evidence. Therefore, in accordance with the Fourth Circuit’s decision in Meyer v. Astrue, 662
F.3d 700 (4th Cir. 2011), the court remanded the case pursuant to sentence four of 42 U.S.C. §
405(g) for the Commissioner, as fact finder, to weigh the new evidence.
In response to Powell’s request for attorney’s fees, the Commissioner re-asserts
arguments from her Memorandum in Support of the Commissioner’s Decision and in Response
to Plaintiff’s Brief (Dkt. No. 24) that the court already found unpersuasive once. Accordingly,
after a thorough review of the record in this case, including the administrative record, the court
finds that the Commissioner has failed to show that her position was substantially justified.
Powell’s motion for attorney’s fees (Dkt. No. 40) is, therefore, GRANTED.
The Commissioner did not object to the number of hours sought or the proposed hourly
rate. However, the court denies Powell’s request for supplemental fees, finding his reply brief
repetitive and cumulative of his initial fee request, and therefore not a sufficient reason to award
additional fees. Consequently, the court awards Powell fees in the amount of $4,095.00 for nine
hours of attorney time and 27.5 hours of paralegal time.

Finally, the Commissioner correctly notes that the award under the EAJA must be made
to the plaintiff. The court orders that the Commissioner issue the award in the name of the
plaintiff and forward the check to plaintiff’s counsel at his office.
IT IS SO ORDERED.
s/Timothy M. Cain
Timothy M. Cain
United States District Court Judge
Anderson, South Carolina
April 11, 2013