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 IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF ALABAMA 

 SOUTHERN DIVISION 

BYRON A. YORK, : 

 : 

Plaintiff, : 

 : 

vs. : CIVIL ACTION 09-0623-CG-M 

 : 

MICHAEL J. ASTRUE, : 

Commissioner of : 

Social Security, : 

 : 

Defendant. : 

 REPORT AND RECOMMENDATION

Pending before the Court is Plaintiff's attorney=s Application 

for Attorney Fees Under the Equal Access to Justice Act, as amended 

and with supporting documentation (Docs. 22, 23), and Defendant's 

Opposition to Plaintiff's Application for Attorney=s Fees Under the 

Equal Access to Justice Act, 28 U.S.C. § 2412 (Doc. 24). After 

consideration of the pertinent pleadings, it is recommended that 

the Application be granted and that Plaintiff=s attorney, Byron A. 

Lassiter, be awarded an EAJA attorney's fee in the amount of 

$3,968.811

. 

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In Panola Land Buying Ass=n v. Clark, 844 F.2d 1506, 1509 (11th

Cir. 1988), the Court stated: AIt is readily apparent that the party 

eligible to recover attorneys= fees under the EAJA as part of its 

litigation expenses is the prevailing party.@ See also, Reeves v. 

Astrue, 526 F.3d 732, 738 (11th Cir. 2008) (AWe conclude the EAJA 

means what it says: attorney=s fees are awarded to the Aprevailing 

party,@ not to the prevailing party=s attorney.@) However, in this 

action, Mr. Lassiter has attached to the Application for Attorney 

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Fees a Limited Power of Attorney assigning the EAJA Fee to counsel 

and signed by Plaintiff (Attachment 2 to Doc. 23). Therefore, it 

is ordered that the EAJA fee be paid directly to Plaintiff=s attorney. 

Plaintiff filed this action on September 23, 2009 (Doc. 1). 

On March 11, 2010, the undersigned Judge entered a Report and 

Recommendation, recommending reversal of the decision of the 

Commissioner and remand for further proceedings consistent with the 

Report and Recommendation (Doc. 18). It was further recommended 

that judgment be entered in favor of Plaintiff and against Defendant 

pursuant to sentence four of 42 U.S.C. § 405(g). By Order and 

Judgment entered March 26, 2010 (Docs. 20, 21), Judge Granade adopted 

the Report and Recommendation as the opinion of the Court. 

On May 26, 2010, Byron A. Lassiter, counsel for Plaintiff, filed 

an Application for Attorney Fees Under the Equal Access to Justice 

Act, in which he requests a fee of $3,968.81, computed at an hourly 

rate of $171.81 for 23.1 hours spent in this Court (Docs. 22, 23). 

Defendant in his Response filed June 7, 2010 (Doc. 24), concedes 

that Plaintiff became the prevailing party when the Court remanded 

this action, Schaefer, 113 S.Ct. at 2631, and that the fee motion 

was timely filed; however, he does not concede that the original 

administrative decision denying benefits was not substantially 

justified (Doc. 24). Defendant contends that the Court should find 

that the Commissioner=s position was substantially justified and 

requests that Plaintiff=s claim for EAJA attorney=s fees be denied. 

Case 1:09-cv-00623-CG-M Document 25 Filed 07/13/10 Page 2 of 11
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Defendant does not object to the hours or hourly rate requested. 

 The EAJA requires a court to 

award to a prevailing party ... fees and other 

expenses ... incurred by that party in any civil 

action ..., including proceedings for judicial 

review of Agency action, brought by or against 

the United States ..., unless the court finds 

that the position of the United States was 

substantially justified or that special 

circumstances make an award unjust. 

28 U.S.C. ' 2412(d)(1)(A). The EAJA further requires that a 

prevailing party file an application for attorney's fees within 

thirty days of final judgment in the action. 28 U.S.C. '

2412(d)(1)(B). The court's judgment is final sixty days after it 

is entered, which is the time in which an appeal may be taken pursuant 

to Rule 4(a) of the Federal Rules of Appellate Procedure. See Shalala 

v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 2632 (1993). 

As set out above, there are three statutory conditions which 

must be satisfied before EAJA fees may be awarded under 28 U.S.C. 

' 2412. See Myers v. Sullivan, 916 F.2d 659, 666 (11th Cir. 1990). 

First, the claimant must file an application for fees within the 

thirty-day period. Second, the claimant must be a prevailing party. 

Third, the Government's position must not be substantially justified. 

Defendant concedes that Plaintiff meets the first two conditions 

but asserts the Government's position was substantially justified. 

With regard to this last condition, in order for Plaintiff to 

recover attorney's fees under the EAJA, the Government must fail 

to "establish that its positions were 'substantially justified' or 

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that there exist 'special circumstances' which countenance against 

the awarding of fees." Myers, 916 F.2d at 666 (interpreting and 

referring to 28 U.S.C. ' 2412(d)(1)(A)). That means that the 

Government must show that there was a "reasonable basis both in law 

and fact" for the positions it took. Myers, 916 F.2d at 666 

(citations omitted). The Court notes that "[a]n examination of 

whether the government's position was substantially justified 

encompasses an evaluation of both the agency's prelitigation conduct 

and the subsequent litigation positions of the Justice Department 

.... Unless the government can establish that all of its positions 

were substantially justified, the claimant is entitled to receive 

attorney's fees." Myers, 916 F.2d at 666 n.5 (emphasis in original; 

citations omitted). Though Defendant bears the burden of showing 

that its position was substantially justified, "[t]he fact that the 

government lost its case does not raise a presumption that the 

government's position was not substantially justified." Ashburn 

v. United States, 740 F.2d 843, 850 (11th Cir. 1984). 

In the Report and Recommendation dated March 11, 2010 (Docs. 

18, 19), the Court found as follows: 

In this action, the ALJ determined that 

although York was unable to perform his past 

relevant work, he was capable of performing a 

full range of light work (Tr. 21-24). The Court 

notes that the ALJ points to no medical evidence 

as support for this determination. The Court 

further notes that the ALJ rejected the physical 

capacities evaluations of a non-examining State 

Agency source (Tr. 21-22; cf. Tr. 157-64) and 

an examining orthopaedic surgeon (Tr. 23; cf. 

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Tr. 206, 209-11) in reaching his decision. 

 However, Chief Judge Granade, in this 

Court, has held that “the Commissioner's 

fifth-step burden cannot be met by a lack of 

evidence, or by the residual functional capacity 

assessment of a non-examining, reviewing 

physician, but instead must be supported by the 

residual functional capacity assessment of a 

treating or examining physician.” Coleman v. 

Barnhart, 264 F.Supp.2d 1007, 1010 (S.D. Ala. 

2003). The Court finds this holding to be 

particularly relevant in the facts of this case 

as the evidence demonstrates that a neurologist 

and an orthopedic surgeon who examined him have 

indicated that Plaintiff has no use of his left 

arm whatsoever (Tr. 147, 154). York testified 

that he is left-hand dominant (Tr. 51). While 

the ALJ may be correct that Plaintiff can perform 

a full range of light work, there is no medical 

evidence in the record to support the finding. 

 Based on review of the entire record, the 

Court finds that the Commissioner's decision 

is not supported by substantial evidence. 

Therefore, it is recommended that the action 

be reversed and remanded to the Social Security 

Administration for further administrative 

proceedings consistent with this opinion, to 

include, at a minimum, a supplemental hearing 

for the gathering of evidence regarding 

Plaintiff’s physical capabilities and 

limitations. 

(Doc. 18, pp. 4, 5). 

Defendant, in his Opposition (Doc. 24), states that there was 

a reasonable basis in law and fact for the Commissioner=s position 

that Plaintiff retained the residual functional capacity to 

occasionally lift and/or carry up to twenty pounds and frequently 

lift and/or carry up to ten pounds with his right hand. 

Defendant further states that the ALJ followed the regulations, 

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rulings, and Eleventh Circuit authority in considering all the 

evidence and that the ALJ then reasonably relied on the objective 

medical evidence of record. 

As set out above and in the Report and Recommendation, the Court 

found that, based upon a review of the entire record, the ALJ=s 

decision was not supported by substantial evidence. By Order and 

Judgment entered March 26, 2010 (Docs. 20, 21), Judge Granade adopted 

the Report and Recommendation as the opinion of the Court. 

Therefore, the Court remanded this action to the Social Security 

Administration for further administrative proceedings to include, 

at a minimum, a supplemental hearing for the gathering of evidence 

regarding Plaintiff’s physical capabilities and limitations. The 

undersigned recommends that the Court find that Defendant=s position 

was not substantially justified in that there was not a reasonable 

basis in law and fact for the position it took. 

Having found that the three prerequisites have been satisfied, 

the Court will now discuss the fee to be awarded in this action. 

The EAJA, like 42 U.S.C. ' 1988, is a fee-shifting statute. 

The Supreme Court has indicated that A>the most useful starting point 

for determining the amount of a reasonable fee is the number of hours 

reasonably expended on the litigation multiplied by a reasonable 

hourly rate.=@ Watford v. Heckler, 765 F.2d 1562, 1586 (11th Cir. 

1985)(EAJA), quoting Hensley v. Eckerhartt, 461 U.S. 424, 433, 103 

S.Ct. 1933, 1939 (1983)(' 1988). In describing this lodestar method 

Case 1:09-cv-00623-CG-M Document 25 Filed 07/13/10 Page 6 of 11
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of calculation, the United States Supreme Court stated: 

This calculation provides an objective basis 

on which to make an initial estimate of the value 

of a lawyer=s services. The party seeking an 

award of fees should submit evidence supporting 

the hours worked and the rates claimed. Where 

the documentation of hours is inadequate, the 

district court may reduce the award accordingly. 

The district court also should exclude from this 

initial fee calculation hours that were not 

Areasonably expended@ .... Cases may be 

overstaffed, and the skill and experience of 

lawyers vary widely. Counsel for the 

prevailing party should make a good-faith effort 

to exclude from a fee request hours that are 

excessive, redundant, or otherwise unnecessary, 

just as a lawyer in private practice ethically 

is obligated to exclude such hours from his fee 

submission. In the private sector, >billing 

judgment= is an important component in fee 

setting. It is no less important here. Hours 

that are not properly billed to one=s client also 

are not properly billed to one=s adversary 

pursuant to statutory authority. 

Hensley, 461 U.S. at 434 (citations omitted). Counsel must use 

professional judgment in billing under EAJA. A lawyer should only 

be compensated for hours spent on activities for which he would bill 

a client of means who was seriously intent on vindicating similar 

rights. Norman v. Housing Authority, 836 F.2d 1292, 1301 (11th Cir. 

1988). 

 The Court, after examination of Plaintiff=s attorney=s 

Application and supporting documentation, and after consideration 

of the reasonableness of the hours claimed, finds that Plaintiff=s 

counsel=s time expended in prosecuting this action for a total of 

23.1 hours is reasonable. 

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With respect to a determination of the hourly rate to apply 

in a given EAJA case, the express language of the Act provides in 

pertinent part as follows: 

The amount of fees awarded under this subsection 

shall be based upon prevailing market rates for 

the kind and quality of the services furnished, 

except that ... attorney fees shall not be 

awarded in excess of $125 per hour 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. 

28 U.S.C. ' 2412(d)(2)(A)(Supp. 1997). 

In Meyer v. Sullivan, 958 F.2d 1029 (11th Cir. 1992), the 

Eleventh Circuit determined that the EAJA establishes a two-step 

analysis for determining the appropriate hourly rate to be applied 

in calculating attorney's fees under the Act. 

The first step in the analysis, ... is to 

determine the market rate for "similar services 

[provided] by lawyers of reasonably comparable 

skills, experience, and reputation." ... The 

second step, which is needed only if the market 

rate is greater than $75 per hour, is to 

determine whether the court should adjust the 

hourly fee upward...to take into account an 

increase in the cost of living, or a special 

factor. 

Id. at 1033-34 (citations omitted & footnote omitted)2

. The 

applicant bears the burden of producing satisfactory evidence that 

the requested rate is in line with prevailing market rates. NAACP 

 2

 Subsequent to Meyer, the cap was raised from $75.00 per hour 

to $125.00 per hour, as set out above in 28 U.S.C. '

2412(d)(2)(A)(Supp. 1997). 

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v. City of Evergreen, 812 F.2d 1332, 1338 (11th Cir. 1987). 

Satisfactory evidence at a minimum is more than the affidavit of 

the attorney performing the work. Blum v. Stenson, 465 U.S. 886, 

104 S.Ct. 1541, 1547 n.11 (1984). Where the fees or time claimed 

seem expanded or there is lack of documentation or testimony in 

support, the court may make an award on its own experience. Norman 

v. City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). Where 

documentation is inadequate, the court is not relieved of its 

obligation to award a reasonable fee, but the court traditionally 

has had the power to make such an award without the need of further 

pleadings or an evidentiary hearing. Id. 

Since 2001, the prevailing market rate in the Southern District 

of Alabama has been $125.00 per hour. See e.g., Smith v. Massanari, 

Civil Action 00-0812-P-M (October 25, 2001); and Square v. Halter, 

Civil Action 00-0516-BH-L (April 12, 2001). However, in 2007, in 

an action before Judge Cassady, a formula was approved and used to 

adjust the prevailing market hourly rate to account for the 

ever-increasing cost of living. Lucy v. Barnhart, CA 06-0147-C (July 

5, 2007). As set out in Lucy, the formula to be used in calculating 

all future awards of attorney=s fees under the EAJA is: A>($125/hour) 

x (CPI-U Annual Average AAll Items Index@, South Urban, for month 

and year of temporal midpoint3

)/152.4, where 152.4 equals the CPI-U 

 3

AThe appropriate endpoint for computing the cost of living 

adjustment is the temporal midpoint of the period during which the 

compensable services were rendered[;] ... [t]he temporal midpoint 

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of March 1996, the month and year in which the $125 cap was enacted.=@

(Id. At 11, quoting Doc. 31, at 2). The undersigned also adopts 

this formula in EAJA fee petition actions for use in arriving at 

the appropriate hourly rate. 

The temporal midpoint in this action was December 24, 2009, 

the complaint having been filed on September 23, 2009 (Doc. 1), and 

the Court having entered its Order and Judgment on March 26, 2010 

(Docs. 20, 21). The CPI-U for December 2009 was 209.476. Plugging 

the relevant numbers into the foregoing formula renders the following 

equation: $125.00 x 209.476/152.4. Completion of this equation 

renders an hourly rate of $171.81. 

 In conclusion, it is recommended that Plaintiff=s attorney=s 

Application be GRANTED, as set out above, and that Plaintiff=s 

attorney, Byron A. Lassiter, be AWARDED an EAJA attorney's fee in 

the amount of $3,968.81. 

 MAGISTRATE JUDGE=S EXPLANATION OF PROCEDURAL RIGHTS 

 AND RESPONSIBILITIES FOLLOWING RECOMMENDATION 

 AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or 

anything in it must, within ten days of the date of service of this 

document, file specific written objections with the clerk of court. 

 Failure to do so will bar a de novo determination by the district 

judge of anything in the recommendation and will bar an attack, on 

appeal, of the factual findings of the magistrate judge. See 28 

U.S.C. ' 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 

1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en

 

is calculated by computing the number of days from the date the claim 

was prepared until the date of the Magistrate or District Judge=s 

Order and Judgment.@ Lucy v. Barnhart, CA 06-0147-C, Doc. 31, at 

3. 

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banc). The procedure for challenging the findings and 

recommendations of the magistrate judge is set out in more detail 

in SD ALA LR 72.4 (June 1, 1997), which provides that: 

A party may object to a recommendation entered by a 

magistrate judge in a dispositive matter, that is, a matter 

excepted by 28 U.S.C. ' 636(b)(1)(A), by filing a AStatement 

of Objection to Magistrate Judge=s Recommendation@ within 

ten days after being served with a copy of the 

recommendation, unless a different time is established 

by order. The statement of objection shall specify those 

portions of the recommendation to which objection is made 

and the basis for the objection. The objecting party shall 

submit to the district judge, at the time of filing the 

objection, a brief setting forth the party=s arguments that 

the magistrate judge=s recommendation should be reviewed 

de novo and a different disposition made. It is 

insufficient to submit only a copy of the original brief 

submitted to the magistrate judge, although a copy of the 

original brief may be submitted or referred to and 

incorporated into the brief in support of the objection. 

 Failure to submit a brief in support of the objection 

may be deemed an abandonment of the objection. 

A magistrate judge=s recommendation cannot be appealed to a Court 

of Appeals; only the district judge=s order or judgment can be 

appealed. 

2. Transcript (applicable where proceedings tape recorded). 

Pursuant to 28 U.S.C. ' 1915 and Fed.R.Civ.P. 72(b), the magistrate 

judge finds that the tapes and original records in this action are 

adequate for purposes of review. Any party planning to object to 

this recommendation, but unable to pay the fee for a transcript, 

is advised that a judicial determination that transcription is 

necessary is required before the United States will pay the cost 

of the transcript. 

DONE this 13th day of July, 2010. 

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE 

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