UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Vicki L. Gillespie

v. Civil No. 04-360-JD

Jo Anne B. Barnhart, Commissioner

Social Security Administration

O R D E R

Following the court’s order reversing and remanding the

Commissioner’s decision to deny her application for social

security disability benefits, Vicki L. Gillespie moves for an

award of attorneys’ fees under the Equal Access to Justice Act

(“EAJA”), 28 U.S.C. § 2412(d). The Commissioner opposes

Gillespie’s motion, asserting that the Commissioner’s litigation

position was substantially justified. She also argues that some

of the fees requested by Gillespie are excessive. Gillespie

filed a reply to address the issues raised by the Commissioner.

I. EAJA

“Under EAJA, a party prevailing against the United States in

court, including a successful Social Security benefits claimant,

may be awarded fees payable by the United States if the

Government’s position in the litigation was not ‘substantially

justified.’” Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002). 

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The government’s position is “substantially justified if it has a

reasonable basis in both law and fact, a determination made on a

case by case basis.” Jean v. United States, 395 F.3d 449, 455

(1st Cir. 2005) (internal quotation marks omitted). In making

that determination, the court must consider the actual merits of

the government’s litigation position as to both the facts and the

law. Schock v. United States, 254 F.3d 1, 5 (1st Cir. 2001).

Here, Gillespie argued that the Commissioner erred in

relying on a five-year-old assessment by a nonexamining state

agency consultant and discrediting more recent medical evidence,

failed to consider some of the effects of her physical condition

on her ability to work, and erred in not finding that her spine

condition was a minimally severe impairment. In response, the

Commissioner argued that the Administrative Law Judge (“ALJ”)

properly considered the record evidence in making her residual

functional capacity assessment and properly found that Gillespie

was able to return to her past work or do other work that exists

in significant numbers in the national economy. The court ruled

that the ALJ erred in relying on the state agency consultant’s

assessment, in equating two of Gillespie’s illnesses which

instead presented two distinct conditions, and in improperly

failing to consider the fatigue associated with Addison’s

disease. The court also concluded, however, that some of

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1The Commissioner does not argue that special circumstances

make an award unjust in this case. See § 2412(d)(1)(A).

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Gillespie’s issues were inconsequential and that the ALJ had

correctly noted that the record showed Gillespie was healthy and

active during much of the period in question. On balance, the

court found that it was a very close case whether the ALJ’s

factual errors were harmless taken in the context of the entire

record but decided in favor of giving the administrative process

the opportunity to correct the noted errors.

If the Commissioner had acknowledged even some of the ALJ’s

errors and argued that the errors were nonetheless harmless, her

litigation position likely would have been substantially

justified. The Commissioner did not take that position, however. 

Instead, she challenged all of the issues Gillespie raised on the

merits. Although the Commissioner was correct as to some of the

issues, on balance, she overplayed her hand. Therefore, her

position was not substantially justified.1

II. Award of Fees

An award of fees under the EAJA must be reasonable. 28

U.S.C. § 2412(d)(2)(A). Courts generally use the “lodestar”

method to determine an appropriate award, which involves

multiplying the number of hours reasonably spent on the

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litigation by a reasonable hourly rate. See, e.g., Brighton

Vill. Nominee Trust v. Malyshev, 2005 WL 1513116, *3 (D. Mass.

June 23, 2005); Ct. Dep’t of Soc. Servs. v. Thompson, 289 F.

Supp. 2d 198, 203 (D. Conn. 2003); Kimball v. Shalala, 826 F.

Supp. 573, 577 (D. Me. 1993). In addition, § 2412(d)(2)(ii) caps

the hourly rate at $125 “unless the court determines that an

increase in the cost of living or a special factor, such as the

limited availability of qualified attorneys for the proceedings

involved, justifies a higher fee.”

Gillespie seeks an award based on work by three attorneys

and hourly rates of $151.65 an hour for work done in 2004 and

$155.35 an hour for work done in 2005. Counsel contend that the

increase is based on an increase in the cost of living since 1996

when the $125 rate was established. The Commissioner does not

contest the hourly rate sought by Gillespie’s attorneys.

The three attorneys who represented Gillespie in this

litigation are Raymond Kelly, Chantal J. Harrington, and Sarah H.

Bohr. Bohr and Harrington practice together in Florida, where

they prepare briefs for other attorneys in social security cases. 

In this case, Harrington worked on the joint statement of facts

and prepared the brief and reply in support of Gillespie’s motion

to reverse the Commissioner’s decision. Bohr prepared the

petition for attorneys’ fees. Kelly practices in New Hampshire

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and represented Gillespie from the beginning of her

administrative proceeding. After Kelly obtained the services of

Bohr and Harrington, he primarily oversaw their preparation of

the case for review.

The Commissioner objects to some of the time claimed by

Kelly as being “non core” work for an attorney. In response,

Kelly has trimmed 2.5 hours from the time submitted. On review,

it appears that Kelly has sufficiently addressed the issues the

Commissioner raises to bring the number of hours he claims into a

reasonable range. The court denies Gillespie’s additional

request for fees for the four hours used to prepare her response

to the Commissioner’s objection.

Conclusion

For the foregoing reasons, the plaintiff’s petition for an

award of fees (document no. 14) is granted in the amount of

$5,583.67.

SO ORDERED.

Joseph A. DiClerico, Jr.

United States District Judge

September 26, 2005

cc: David L. Broderick, Esquire

Raymond J. Kelly, Esquire

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