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Bohovich v. Astrue

July 24, 2008


The opinion of the court was delivered by: (judge Caputo)



Before me is Plaintiff John F. Bohovich's Motion for Attorney's Fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. (Doc. 17). For the following reasons, Plaintiff's motion will be granted in part and denied in part. Plaintiff will be granted four-thousand, five hundred and twenty-two dollars ($4522.00)in attorney's fees, three-hundred and eighty-eight dollars and twenty-five cents ($388.25) in costs, and twenty-seven dollars and twelve cents ($27.12) in expenses.


Plaintiff applied for Disability Insurance Benefits ("DIB") under Title VI on January 27, 2005, alleging an inability because of hypertension, hypoglycemia, hyperlipidemia, and an anxiety-related disorder. His claims were initially denied. A timely request for a hearing was filed, and a hearing was held before an Administrative Law Judge ("ALJ") on February 21, 2006. While the ALJ determined that the Plaintiff had a severe mental impairment based on anxiety disorder, she determined that these impairments did not meet or equal the listed impairments for purposes of disability under the Act. The ALJ also found that he had no exertional limitations, and could perform work that did not require the use of ladders or hazards. The ALJ determined that Plaintiff, who represented by counsel at this hearing, was not disabled within the meaning of the Act, and denied him benefits on April 7, 2006.

Plaintiff requested review of the ALJ's decision by the Appeals Council. The Appeals Council denied that request by action dated July 13, 2006, thereby making the ALJ's decision the "final decision" of the Commissioner under 42 U.S.C. § 405(g). Plaintiff then appealed this decision to federal court. (Doc. 1.) On June 15, 2007, Magistrate Judge Blewitt recommended that Plaintiff's appeal be denied. (Doc. 10.) Plaintiff timely filed objections to the Report and Recommendation on August 2, 2007. (Doc. 13.) This Court granted in part and denied in part Plaintiff's objections, finding that the ALJ's determination that the Plaintiff could work at any exertional level was not supported by substantial evidence, that the ALJ failed to include Plaintiff's mental deficiencies in her questions to the vocational expert, and that the ALJ's determination that there were jobs in the national economy that Plaintiff could perform was not supported by substantial evidence. (Doc. 16.) The matter was remanded to the Commissioner of Social Security for further consideration. (Doc. 16.)


Pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, the Court "shall award to a prevailing party other than the United States fees and other expenses . . . 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) (emphasis added). By providing that the court "shall" award attorney's fees unless the exception applies, the EAJA makes attorney's fees mandatory to a qualified prevailing party. Corona v. Barnhardt, 431 F. Supp. 2d 506, 511 (E.D. Pa. 2006).

A motion for attorneys' fees must be filed "within thirty days of final judgment in the action." 28 U.S.C. § 2412(d)(1)(B). A " 'final judgment' means a judgment that is final and not appealable. . . ." 28 U.S.C. § 2412(d)(2)(B). "[T]he thirty day cut-off for EAJA petitions begins when the government's right to appeal the order has lapsed." Taylor v. United States, 749 F.2d 171, 174 (3d Cir.1984). In this case, the attorney's fee petition was filed within the proper time restraints.


I. Prevailing Party

The first issue before the Court is whether the Plaintiff is a "prevailing party." In determining whether a party is a "prevailing party" in a Social Security case where the district court has remanded the case, the court must determine whether the remand is pursuant to "sentence four" or "sentence six" of 42 U.S.C. § 405(g). Section 405(g) governs remands to the Commissioner in Social Security cases.

Sentence four of Section 405(g) states: "The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g).

Sentence six provides:

The court . . . may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding; and the Commissioner of Social Security shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm the Commissioner's findings of fact or the Commissioner's decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and, in any case in which the Commissioner has not made a decision fully favorable to the individual, a transcript of the additional record and testimony upon which the Commissioner's action in modifying or affirming was based.

42 U.S.C. § 405(g).

In Shalala v. Schaefer, the Supreme Court held that "a party who wins a sentence-four remand order is a prevailing party." 509 U.S. 292, 302 (1993). The Court noted that this was consistent with its previous reading of a "prevailing party" in Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92 (1989) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)). In Texas State Teachers, the Court held that "[i]f the plaintiff has succeeded on 'any significant issue in litigation which achieve[d] some of the benefit the parties sought in bringing suit,' the plaintiff has crossed the threshold to a fee award of some kind." Id. at 791-92. The Schaefer Court also held that "[i]mmediate entry of judgment (as opposed to entry of judgment after postremand agency proceedings have been completed and their ...

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