IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

NATALIE P. GOINS, :

Plaintiff, :

vs. : CA 05-0682-C

JO ANNE B. BARNHART, :

Commissioner of Social Security,

:

Defendant.

MEMORANDUM OPINION AND ORDER

This cause is before the Court, pursuant to 28 U.S.C. § 636(c) and Rule

54(d)(2)(D) of the Federal Rules of Civil Procedure, on plaintiff’s application

for attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C.

§ 2412. (Doc. 23) Upon consideration of all pertinent materials contained in

this file, it is determined that plaintiff should receive a reasonable attorney’s

fee in the amount of $1,887.50 under the EAJA for legal services rendered by

her attorney in this Court. 

FINDINGS OF FACT

1. On July 10, 2006 this Court entered a Rule 58 judgment

reversing and remanding this cause to the Commissioner of Social Security

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pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings. (Doc.

22; see also Doc. 21) 

2. The application for attorney’s fees under the EAJA was filed on

October 4, 2006 (Doc. 23), some eighty-six (86) days after entry of final

judgment (compare id. with Doc. 22). In the application, plaintiff requests

attorney’s fees in the amount of $1,887.50 to compensate her attorney for the

time spent representing her before this Court as of the date of the filing of the

fee application. (See Doc. 23)

3. The Commissioner of Social Security filed a response to

plaintiff’s EAJA fee application on October 18, 2006 and therein contends that

her position in this litigation was substantially justified. (See Doc. 25) 

CONCLUSIONS OF LAW

1. The Equal Access to Justice Act requires a district 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).

2. The Commissioner essentially contends that her position

Case 1:05-cv-00682-C Document 26 Filed 10/26/06 Page 2 of 9
1 The continuation of this argument is that “while the opinion of a State agency

physician is helpful, it is not mandatory under the Commissioner’s regulations.” (Doc. 25, at 3)

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regarding plaintiff’s residual functional capacity was reasonable based upon

the facts in this case. Acknowledging that this Court has concluded that the

Commissioner’s RFC determination must be supported, at the very least, by

the RFC of a non-examining reviewing physician, the defendant nonetheless

argues that her position in this regard was substantially justified because it is

the ALJ’s responsibility to determine residual functional capacity1

 and the

plaintiff did not raise this particular error in her proposed report and

recommendation. It simply does not advance defendant’s position to argue that

the plaintiff did not raise what is clear error. (See Doc. 21, at 7 (“This Court

has previously indicated that ‘[r]eliance upon a form completed by a disability

examiner is clear error which must be corrected on remand.’”)) Moreover, the

argument that it is the ALJ’s responsibility to determine residual functional

capacity ignores the clear evidence that in making that very determination the

ALJ misrepresented in his decision that he was relying upon “the opinions of

the state agency medical consultant[,]” (Tr. 681) when, in fact, the opinions he

relied upon were those of a lay disability specialist (Doc. 21, at 7). In light of

the foregoing, there was no reasonable basis in law or fact for the ALJ to rely

on an RFC assessment completed by a social security disability specialist to

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2 “[A] party who wins a sentence-four remand order is a prevailing party.” Shalala

v. Schaefer, 509 U.S. 292, 302, 113 S.Ct. 2625, 2632, 125 L.Ed.2d 239 (1993).

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find that the claimant can perform the physical requirements of the full range

of light work and is not disabled under the Social Security Act. See Pierce v.

Underwood, 487 U.S. 552, 566 n.2, 108 S.Ct. 2541, 2550 n.2, 101 L.Ed.2d 490

(1988) (“[A] position can be justified even though it is not correct, and we

believe it can be substantially (i.e., for the most part) justified if a reasonable

person could think it correct, that is, if it has a reasonable basis in law and

fact.”). Accordingly, the Court rejects the Commissioner’s argument that her

position in this case was substantially justified.

3. The Commissioner makes no argument that plaintiff is not a

prevailing party under the EAJA (see Doc. 25);2

 therefore, the Court focuses

its attention on other matters.

4. The EAJA requires a prevailing party to file an application for

attorney's fees within thirty (30) days of final judgment in the action. 28 U.S.C.

§ 2412(d)(1)(B). The thirty-day clock did not begin to run in this case until

this Court's reversal and remand order of July 10, 2006 became final, which

occurred at the end of the sixty (60) days for appeal provided under Rule

4(a)(1) of the Federal Rules of Appellate Procedure, see Shalala v. Schaefer,

509 U.S. 292, 302, 113 S.Ct. 2625, 2632, 125 L.Ed.2d 239 (1993), that is,

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September 8, 2006. The application filed in this case, bearing a date of

October 4, 2006, is timely since it was filed within thirty days of September

8, 2006.

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

Supreme Court has indicated that "'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, 1568 (11th Cir. 1985) (EAJA), quoting Hensley v.

Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983)(§

1988); see Jean v. Nelson, 863 F.2d 759, 772-773 (11th Cir. 1988) (discussing

the reasonableness of the hours expended in the context of contentions by the

government that the fee requests were not supported by sufficient

documentation and often involved a duplication of effort), aff'd sub nom.

Commissioner, I.N.S. v. Jean, 496 U.S. 154, 110 S.Ct. 2316, 110 L.Ed.2d 134

(1990).

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

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fee calculation hours that were not "reasonably

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, supra, 461 U.S. at 433-434, 103 S.Ct. at 1939-1940 (citations

omitted); see also id. at 437, 103 S.Ct. at 1941 ("[T]he fee applicant bears the

burden of establishing entitlement to an award and documenting the

appropriate hours expended and hourly rates."); ACLU of Georgia v. Barnes,

168 F.3d 423, 428 (11th Cir.1999) (“If fee applicants do not exercise billing

judgment, courts are obligated to do it for them, to cut the amount of hours for

which payment is sought, pruning out those that are ‘excessive, redundant, or

otherwise unnecessary.’ Courts are not authorized to be generous with the

money of others, and it is as much the duty of courts to see that excessive fees

and expenses are not awarded as it is to see that an adequate amount is

awarded.”); Norman v. Housing Authority, 836 F.2d 1292, 1301 (11th Cir.

1988) ("Excluding excessive or otherwise unnecessary hours under the rubric

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of 'billing judgment' means that a lawyer may not be compensated for hours

spent on activities for which he would not bill a client of means who was

seriously intent on vindicating similar rights, recognizing that in the private

sector the economically rational person engages in some cost benefit

analysis."). 

6. In Norman, supra, the Eleventh Circuit indicated that "the

measure of reasonable hours is determined by the profession's judgment of the

time that may be conscionably billed and not the least time in which it might

theoretically have been done." 836 F.2d at 1306. 

7. Because the defendant does not object to the number of hours

listed on the itemization filed by plaintiff’s attorney, the Court finds that

plaintiff’s counsel reasonably spent 15.1 hours on legal tasks in this case.

8. With respect to a determination of the hourly rate to apply in a

given EAJA case, for services performed by attorneys, the express language

of the Act, as amended by the Contract with America Advancement Act of

1996, 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 $125.00 per hour unless the court

determines that an increase in the cost of living or

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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) (Cum.Supp. 1997).

9. In Meyer v. Sullivan, 958 F.2d 1029 (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 $[125] per hour, is to determine whether the

court should adjust the hourly fee upward from

$[125] to take into account an increase in the cost

of living, or a special factor.

Id. at 1033-1034 (citations and footnote omitted).

10. The prevailing market rate in the Southern District of Alabama

is $125.00 per hour. See, e.g., Willits v. Massanari, CA 00-0530-RV-C; Boggs

v. Massanari, 00-0408-P-C; Boone v. Apfel, CA 99-0965-CB-L. Because the

market rate is not greater than the statutory rate of $125.00 per hour, the Court

need not reach the second step set out in the Meyer case. 

11. In consideration of the foregoing, the plaintiff should be awarded

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an attorney's fee in the amount of $1,887.50 under the EAJA for the 15.1 hours

her attorney spent performing work traditionally performed by attorneys in

social security cases. 

CONCLUSION

The Court ORDERS that plaintiff be awarded attorney's fees in the

amount of $1,887.50 under the Equal Access to Justice Act, representing

compensation for 15.1 hours of service by Byron A. Lassiter, Esquire, at the

market rate of $125.00 an hour.

DONE this the 25th day of October, 2006.

s/WILLIAM E.CASSADY 

 UNITED STATES MAGISTRATE JUDGE

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