The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
MEMORANDUM OPINION RE: PLAINTIFFS PETITION AND AMENDED PETITION FOR ATTORNEY FEES (DOC. NOS. 19 & 24)
Before this Court are Plaintiff's Petition and Amended Petition for Attorney Fees in the amount of $6,205. 00, plus an additional $1360.00 for a total of $7,565.00, under the Equal Access to Justice Act (EAJA), 28 U.S.C. ' 2412, as amended (doc. nos. 19 and 24), based upon an expenditure of 36.5 hours at the rate of $170.00 per hour (the Amended Petition seeks fees for the additional 8 hours plaintiff counsel expended in responding to defendant's objections to her Petition for Attorney's Fees, for a total of 44.5 hours).
Plaintiff seeks attorney's fees based upon her success before this Court on July 30, 2010, the date on which this Court issued its Memorandum Opinion and Order finding that the ALJ erred in three respects and remanding this case to the Social Security Administration for further consideration. Plaintiff brought the underlying suit as a result of a final, unfavorable determination by defendant that plaintiff was not entitled to disability benefits under the Social Security Act. On June 8, 2010, plaintiff filed her motion for summary judgment and supporting brief of approximately 26 pages in length (doc. nos. 13-14), and on June 9, 2010, the Commissioner filed its motions for summary judgment and supporting brief. Doc. Nos. 15-16. Plaintiff's brief contained three legal issues for consideration. On July 30, 2010, the Court issued a 26 page Memorandum Opinion and Order agreeing with plaintiff and finding that the ALJ erred by considering plaintiff's obesity, mental limitations and borderline age situation, and therefore, remanded this case for reconsideration "to properly determine Plaintiff's RFC and whether in fact, the Plaintiff has an impairment or combinations of impairments which meets or medically equals the Listings." (Doc. No. 17 at 25).
On August 17, 2010, plaintiff timely filed her Petition for Attorney Fees under the EAJA (doc. no. 19), wherein she initially requested payment for 36.5 hours at the rate of $170.00 per hour, for a total amount of $6,205.00. However, in light of defendant's Objections to the Petition for Fees (doc. no. 20), on September 8, 2010, plaintiff's counsel filed an Amended Petition for Attorney Fees seeking an additional 8 hours at the rate of $170.00 for a new total amount of $7,565.00. Doc. No. 24.*fn1
In order for plaintiff to prevail under the EAJA, 28 U.S.C. '2412(d)(1)(B), the Court must find that: (1) claimant is a prevailing party; (2) the Government's position was not substantially justified; and (3) no special circumstances exist to make an award unjust. See United States v. Eleven Vehicles, 937 F.Supp. 1143, 1150 (E.D. Pa. 1996). AWhether or not the position of the United States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought.@ 28 U.S.C. ' 2412(d)(1)(B).
In this case, defendant does not dispute that plaintiff is entitled to attorney's fees as a prevailing party under the EAJA; rather, defendant argues that the requested amount is unreasonable because (1) it is far outside the "average EAJA award of $3,000-$4,000," and because (2) the hours billed are allegedly excessive. Doc. No. 20 at 3, 4.
In support of defendant's first argument, defendant cites to a concurring opinion authored by United States Supreme Court Justice Sotomayor in Astrue v. Ratliff, 560 U.S. 2521 at 2530 (2010), wherein Justice Sotomayor stated in dicta that the average EAJA fee award in Social Security disability cases is $3,000.00 to $4,000.00 per case.*fn2 Based upon the dicta in Ratliff, defendant argues that the instant matter is a typical Social Security disability case and nothing in this case necessitates a higher award.
Defendant argues in support of its second contention that the number of hours claimed by plaintiff's counsel should be reduced "because much of the time billed was grossly excessive and unreasonable." Doc. No. 20 at 4. Defendant contends that counsel's billing of 28.5 hours for drafting the brief in support of summary judgment is excessive and should be reduced to 25.0 hours, and that the total award should be no greater than $4,250.00 because of the routine nature of the case and plaintiff counsel's expertise in this area of law.
The Court recognizes that when a plaintiff Aachieves a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award,@ he or she should recover a full compensatory fee. Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). In making this assessment, the Court Ashould ...