TYSON v. COLVIN, 8:13-CV-29. (2014)
Court: District Court, D. Nebraska
Number: infdco20140710b85
Visitors: 14
Filed: Jul. 09, 2014
Latest Update: Jul. 09, 2014
Summary: MEMORANDUM AND ORDER JOHN M. GERRARD, District Judge. This matter is before the Court upon Plaintiff's Motion for Award of Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412(d) (filing 30). The defendant has no objection to the awarding of fees and expenses in the amount of $6,328.90, which represents 33.31 hours of work at $190 per hour. 1 The Court has determined that plaintiff was the prevailing party in this action, as the Commissioner's decision was reversed and
Summary: MEMORANDUM AND ORDER JOHN M. GERRARD, District Judge. This matter is before the Court upon Plaintiff's Motion for Award of Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412(d) (filing 30). The defendant has no objection to the awarding of fees and expenses in the amount of $6,328.90, which represents 33.31 hours of work at $190 per hour. 1 The Court has determined that plaintiff was the prevailing party in this action, as the Commissioner's decision was reversed and ..
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MEMORANDUM AND ORDER
JOHN M. GERRARD, District Judge.
This matter is before the Court upon Plaintiff's Motion for Award of Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (filing 30). The defendant has no objection to the awarding of fees and expenses in the amount of $6,328.90, which represents 33.31 hours of work at $190 per hour.1
The Court has determined that plaintiff was the prevailing party in this action, as the Commissioner's decision was reversed and the case was remanded to the Commissioner for calculation and award of benefits; that the application for fees was filed in a timely fashion;2 and that the position of the Commissioner was not substantially justified because the administrative law judge did not afford controlling weight to the opinion of the plaintiff's treating psychiatrist. See Koss v. Sullivan, 982 F.2d 1226 (8th Cir. 1993). Therefore, the plaintiff is entitled to an award of attorney fees.
IT IS ORDERED:
1. Plaintiff's Motion for Award of Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (filing 30) is granted.
2. By separate document, the Court shall enter judgment for plaintiff and against defendant providing that plaintiff is awarded attorney fees of $6,328.90.
FootNotes
1. 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 30-1 and 30-3.
2. 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).
Source: Leagle
