Opinion
8:12-CV-159
10-18-2012
LADELL EUGENE WALTON, JR., Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant.
MEMORANDUM AND ORDER ON
MOTION FOR ATTORNEY FEES
This matter is before the Court upon Plaintiff's motion for attorney fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (filing 21). The defendant has no objection to the awarding of fees and expenses in the amount of $5,777.60, which represents 31.4 hours of work at $184 per hour.
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 21 and 22-2.
The Court has determined that plaintiff was the prevailing party in this action, as it was remanded to the Commissioner for further action; that the application for fees was filed in a timely fashion; and that the position of the Commissioner was not substantially justified because the administrative law judge did not include limitations in the plaintiff's residual functional capacity to account for all the plaintiff's severe impairments. See Koss v. Sullivan, 982 F.2d 1226 (8th Cir. 1993). Therefore, the plaintiff is entitled to an award of attorney fees.
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).
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IT IS ORDERED:
1. Plaintiff's Motion for Attorney Fees Pursuant to 28 U.S.C. § 2412(d)(1)(B) (filing 21) is granted.
2. By separate document, the Court shall enter judgment for plaintiff and against defendant providing that plaintiff is awarded attorney fees of $5,777.60.
BY THE COURT:
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John M. Gerrard
United States District Judge