Jones v. Astrue

Filing 43

ORDER granting 36 Motion for Attorney Fees. Signed by Chief Judge Jeffrey L. Viken on 2/5/13. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
KELLY CHRIS JONES,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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CIV. 11-5014-JLV

ORDER GRANTING MOTION
FOR EAJA FEES

NATURE AND PROCEDURE OF THE CASE
On September 25, 2012, the court entered an order reversing the
Commissioner’s determination Mr. Jones was not disabled and remanded
the matter for rehearing. Mr. Jones then moved for an award of attorney’s
fees pursuant to the Equal Access to Justice Act (EAJA). Counsel initially
sought fees in the amount of $13,925.00, $835.50 for sales tax on the fee
and costs in the amount of $23.00 for a total award of $14,783.50. The
Commissioner opposes the request contending the government’s position
was substantially justified. The Commissioner further asserts the award
requested is excessive.
DISCUSSION
Title 28 of the United States Code, section 2412(d)(1)(A) provides in
pertinent part that “a court shall award to a prevailing party other than the
United States fees and other expenses . . . incurred by that party in any civil

action . . . brought by or against the United States in any court having
jurisdiction of that action, unless the court finds that the position of the
United States was substantially justified or that special circumstances make
an award unjust.” Here, Mr. Jones is considered a prevailing party and is
thus entitled to an award of fees and expenses. The Commissioner,
however, objects to the award of attorney’s fees arguing the ALJ’s
determination, though not supported by substantial evidence, was
substantially justified. “A position enjoys substantial justification if it has a
clearly reasonable basis in law and fact.” Goad v. Barnhart, 398 F.3d 1021,
1025 (8th Cir. 2005) (citing Brouwers v. Bowen, 823 F.2d 723, 275 (8th Cir.
1987)). Substantial justification is “determined on the basis of the record
(including the record with respect to the action or failure to act by the
agency upon which the civil action is based) which is made in the civil
action for which fees and other expenses are sought.” 28 U.S.C.
§ 2412(d)(1)(B).
In the order dated September 25, 2012, the court found the ALJ erred
in setting forth Mr. Jones’ severe impairments, in assessing Mr. Jones’
complaints of pain as not credible, and in formulating Mr. Jones’ residual
functional capacity (“RFC”). The court also found the ALJ erred in rejecting
the opinion of Mr. Jones’ treating physician. The law of the United States
Court of Appeals for the Eighth Circuit required the ALJ to assign

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controlling weight to the opinion of a treating physician if the opinion was
not inconsistent with the medical evidence. The ALJ incorrectly found the
opinion was not supported by the record when, in fact, the opinion was
consistent with the medical evidence as a whole. This, in turn, tainted the
ALJ’s credibility determination and RFC formulation. The court concludes
neither the ALJ’s determination nor the Commissioner’s subsequent
position in this matter had “a clearly reasonable basis in law and fact.” See
Goad, 398 F.3d at 1025. As a result, the court finds the award of fees and
costs is appropriate.
The Commissioner contends the fees requested are excessive.
Counsel for Mr. Jones initially claimed she spent 83.07 hours in preparing
the briefs in this matter. In the reply brief, Mr. Jones’ counsel requests
reimbursement for .92 hours to prepare the reply brief which would amount
to $154.22. Thus, counsel requests payment for 83.99 hours expended on
the matter at an hourly rate of $167.63, for a total of $14,079.24. She also
requests an award of sales tax at a rate of 6 percent which would amount to
$844.75. The total award sought by Mr. Jones’ counsel is $14,923.99.
The Commissioner does not object to the hourly rate assessed or the
request for sales tax, but does object to the number of hours claimed. The
court agrees the amount of time spent on this matter is extensive, however,
in reviewing counsel’s time log, the court does not note any unreasonable
expenditures of time. See Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).
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Counsel also requested costs in the amount of $23 for a medical
expert opinion. The Commissioner objected to the request contending it was
not appropriate under 28 U.S.C. § 1920. Mr. Jones withdrew the request
for the $23 in his reply brief. As a result, the court will not consider
awarding this sum. Accordingly, it is hereby
ORDERED that plaintiff’s motion (Docket 36) is granted. Plaintiff is
awarded $14,923.99 comprised of $14,079.24 in attorney’s fees and
$844.75 representing 6 percent state and local sales tax on the attorney fees
pursuant to the Equal Access to Justice Act.
Dated February 5, 2013.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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