Opinion
Civ. No. 2:98 CV 36 DDN.
February 7, 2000.
Frank T. Koch, 573-443-3354 fax, [COR LD NTC], HARLAN AND HARLAN, 307 Locust Street, P.O. Box 933, Columbia, MO 65205, 573-874-2402, FTS 443-3354, for plaintiff.
Edwin B. Brzezinski, Sr., Asst., U.S. Attorney, [term 07/28/99], 314-539-2777 fax, [COR LD NTC], Wesley D. Wedemeyer, 314-539-2777 fax, [COR LD NTC], Edward L. Dowd, Jr., [term 08/31/98], 314-539-7695 fax, [COR LD NTC], OFFICE OF U.S. ATTORNEY, 1114 Market Street, Room 401, St. Louis, MO 63101, 314-539-2200, FTS 539-7695, for defendant.
MEMORANDUM
This matter is before the Court upon plaintiff's application for attorney's fees (Doc. No. 32). The parties have consented to the exercise of jurisdiction by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
Plaintiff Arthur Adams commenced this action seeking judicial review of the decision of defendant Kenneth S. Apfel, Commissioner of Social Security, denying his application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq, and application for supplemental security income (SSI) based on disability under Title XVI of the Social Security Act, 24 U.S.C. § 1381 et seq. The parties filed cross motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff argued that the administrative law judge committed reversible error by failing to make a finding of residual functional capacity that was supported by substantial evidence and that the administrative law judge's questions to the vocational expert were inadequate. Defendant argued that plaintiff had a fair hearing and substantial evidence on the record as a whole supported the Commissioner's decision.
On August 31, 1999, the Court sustained plaintiff's motion for summary judgment and remanded the action to the defendant under Sentence 4 of 42 U.S.C. § 405(g) for an award of benefits for a closed period of disability from December 1, 1994 to March 1, 1996. See Order, filed August 31, 1999, (Doc. No. 27). However, the Court further ordered that plaintiff was only entitled to an award of benefits under Title II of the Social Security Act for the period beginning April 8, 1995 to March 1, 1996. The reason was that plaintiff was only entitled to retroactive disability insurance benefits for the 12 months preceding his application for such benefits on April 8, 1996. Id. at 2, n. 1.
Plaintiff now seeks attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. The EAJA provides for the award of fees and expenses to a prevailing party who submits a timely application for fees, unless the Court finds that the position of the United States was substantially justified. Plaintiff argues that he was the prevailing party in the case by reason of the order entered on August 31, 1999, and that the position of the United States was not substantially justified. Defendant opposes the fee application, arguing that the Commissioner's position was substantially justified. Pursuant to the EAJA, a court:
[S]hall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded . . . including proceedings for judicial review of agency action . . . 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). Accordingly, plaintiff's attorney is entitled to fees and expenses if (1) plaintiff was the prevailing party, and (2) defendant's position was not substantially justified.
In order to be a prevailing party for EAJA purposes, plaintiff must have recovered some, but not necessarily all, of the benefits originally sought in his action. Swedberg v. Bowen, 804 F.2d 432, 434 (8th Cir. 1986). The Eighth Circuit held that a party is not required "to receive all of the benefits to which he claimed entitlement under the Social Security Act, but he must receive some in order to be a prevailing party." Id. Plaintiff received benefits sought under Title II, and was thereby the prevailing party.
The next question is whether defendant's position was substantially justified. This Court has commented as follows:
A party's position is substantially justified if it is "justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 545 (1988). In other words, the government "must show that its position was `clearly reasonable; well-founded in law and fact, solid though not necessarily correct.'" [Melton v. Bowen, 673 F. Supp. 353, 355 (W.D. Mo. 1987)] (quoting Jackson v. Bowen, 807 F.2d 127, 128 (8th Cir. 1986)). The "substantial justification standard is a lesser standard than the substantial evidence standard used to review administrative determinations." Brouwers v. Bowen, 823 F.2d 273, 275 (8th Cir. 1987). As a result, the government's position may be "substantially justified" even though the court finds that there was not substantial evidence to support the Secretary's decision.Vanover v. Chater, 946 F. Supp. 744, 745 (E.D. Mo. 1990) (quotingSullivan v. Sullivan, 738 F. Supp. 332, 333 (W.D. Mo. 1990)) (internal citations omitted)
Defendant argues that its position was substantially justified on the premise that this Court, in finding a closed period of disability, commented that "the findings and conclusions of the . . . Commissioner of Social Security, are largely supported by substantial evidence, ex[c]ept for the period, generally from December of 1994 through March of 1996, which I feel the evidence indicates, without dispute, a closed period of disability." Adams v. Apfel, No. 2:98 CV 36 DDN (E.D. Mo. August 31, 1999), Transcript, at 5. Defendant also claims that "the ALJ's evaluation of plaintiff's credibility was supported by his unimpressive work history and failure to mention medication side-effects to his physicians." Def. Opp., filed November 19, 1999, (Doc. No. 35), at 4. Finally, defendant claims that when the record is considered as a whole, defendant's position was substantially justified.
The Court concludes that defendant's position was not substantially justified. First, the Court emphasized that the evidence, without dispute, indicated a closed period of disability from December of 1994 through March of 1996. Adams v. Apfel, No. 2:98 CV 36 DDN, at 5. Second, while the Administrative Law Judge considered Dr. Bondurant's medical testimony, see SSA Transcript, filed Sept. 11, 1998, (Doc. No. 15), at 20-21, he did not consider Dr. Bondurant's mandate that plaintiff rest for ten minutes every hour. He also failed to ask the vocational expert the ramifications of such a mandate. However, on cross-examination, the expert testified that there would not be work for the claimant if he was required to take a ten minute rest each hour. Id. at 45. The ALJ was not substantially justified in refusing to consider this testimony and denying plaintiff benefits.
Having determined that plaintiff is the prevailing party and that defendant's position was not substantially justified, the Court must determine whether the amount requested by plaintiff's attorney is reasonable. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Plaintiff's attorney seeks an hourly rate of $125.00 for attorney time and an hourly rate of $50.00 for legal assistant time. This amounts to a total of $2,106.25 for 16.25 hours of attorney time and 1.5 hours of legal assistant time. Plaintiff's attorney also asks for $11.29 in expenses. After reviewing the submitted hours, the Court finds the amount of time plaintiff's counsel and his assistant spent reasonable. The bulk of the time was spent preparing the brief, reviewing the file, and traveling to and from the oral argument. Therefore, the Court will award plaintiff $2,106.25 plus $11.29 in expenses.
An appropriate order is issued herewith.
Signed this 7th day of February, 2000.
ORDER
In accordance with the memorandum filed herewith,
IT IS HEREBY ORDERED that plaintiff's application for attorney's fees (Doc. No 32) is sustained. Plaintiff is awarded $2,106.25 in attorney's fees, plus $11.29 in expenses.
Signed this 7th day of February, 2000.