Bianco v. Commissioner of the Social Security Administration

Filing 26

ORDER granting 23 Motion for Attorney Fees pursuant to EAJA in the amount of $2,964.25.Defendant is directed to make this amount payable to Plaintiff. Signed by Honorable G Ross Anderson, Jr on 11/16/2012.(gnan )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION

Linda Bianco,
Plaintiff,

v.
Michael J. Astrue,
Commissioner of Social Security
Defendant.

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C/A No.: 4:12-cv-00570-GRA
ORDER
(Written Opinion)

This matter comes before the Court upon Plaintiff’s motion for attorney’s fees
pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Plaintiff
seeks fees in the amount of $2,964.25, which represents 3 hours of attorney’s work at
the hourly rate of $177.50 and 27.4 hours of paralegal’s work at the hourly rate of
$88.75. The Commissioner filed a response in support of an award of reasonable
attorney’s fees to Plaintiff on November 13, 2012. ECF No. 25. For the reasons
stated herein, Plaintiff’s motion is hereby GRANTED.
Background
Plaintiff filed an application for Social Security Disability on January 19, 2006,
alleging disability as of July 22, 2005 due to neck, back, and shoulder injuries. ECF
No. 15-7. The Commissioner denied her application initially and upon
reconsideration. See ECF No. 15-5. Plaintiff filed a timely request for a hearing

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before an Administrative Law Judge (“ALJ”), which was held on January 30, 2008. Id.
The ALJ denied her claim in an order dated April 4, 2008. ECF No. 15-2.
After exhausting all of her administrative remedies, Plaintiff filed the instant
action seeking judicial review of the Commissioner’s final decision on February 28,
2012. ECF No. 1. The matter was initially referred to United States Magistrate Judge
Thomas E. Rogers, III for a Report and Recommendation (“R & R”). However, after
Plaintiff submitted her brief to the Magistrate arguing that the ALJ and Appeals
Council failed to evaluate all the relevant evidence, the Commissioner voluntarily
moved to remand the claim pursuant to sentence four of 42 U.S.C. § 405(g) for
further administrative action. See ECF No. 18. Plaintiff consented to this motion, and
Magistrate Judge Rogers remanded the case on September 26, 2012. ECF No. 22.
Discussion
Under the EAJA, a party who prevails in litigation against the United States is
entitled to an award of attorney’s fees and costs upon timely petition unless the Court
finds that the government’s position was substantially justified or that special
circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A) (2006).
The government has the burden of proving that its position was substantially
justified. Crawford v. Sullivan, 935 F.2d 655, 658 (4th Cir. 1991). To be substantially
justified, the government’s position must be “justified to a degree that could satisfy a
reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). In other
words, the government must establish that its position has a reasonable basis in both
law and fact. Id. In determining whether the government’s position was substantially
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justified, the Court “consider[s] the totality of the circumstances.” Hyatt v. Barnhart,
315 F.3d 239, 244–45 (4th Cir. 2002).
Here, the Commissioner does not object to an award of EAJA fees to Plaintiff
and further does not object to the amount sought by Plaintiff. ECF No. 25. Upon
review of Plaintiff’s motion and supporting affidavit, the Court finds that the amount of
$2,964.25, representing 3 hours of attorney’s work at the hourly rate of $177.50 and
27.4 hours of paralegal’s work at the hourly rate of $88.75, is reasonable. The
Commissioner correctly notes that an EAJA award is to be made payable directly to
Plaintiff and not Plaintiff’s attorney. See Astrue v. Ratliff, 505 U.S. ___, No. 08-1322,
slip op. at 1 (June 14, 2010) (holding that the plain text of the EAJA requires that
attorney’s fees be awarded to the litigant, thus subjecting EAJA fees to offset of any
pre-existing federal debts); see also Stephens v. Astrue, 565 F.3d 131, 139 (4th Cir.
2009) (same).
IT IS THEREFORE ORDERED that Plaintiff’s motion for attorney’s fees
pursuant to the EAJA in the amount of $2,964.25 is hereby GRANTED. Defendant is
directed to make this amount payable to Plaintiff.
IT IS SO ORDERED.

November 16 , 2012
Anderson, South Carolina

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