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Chryel D. Burt v. Michael J. Astrue

April 6, 2011


The opinion of the court was delivered by: Buckwalter, S.J.


Currently pending before the Court is Plaintiff Chryel Burt's Motion for Attorney's Fees Pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). For the following reasons, the Motion is granted and Plaintiff is awarded attorney's fees in the amount of $8,045.75, plus filing fee costs of $350.


Plaintiff originally filed her application for Disability Insurance Benefits pursuant to Title II of the Social Security Act, 42 U.S.C. § 401, et seq., on December 10, 1999. The state agency denied her application and she appeared before an Administrative Law Judge ("ALJ") on October 21, 2000. On February 22, 2001, the ALJ issued a decision finding Plaintiff limited to sedentary work and incapable of returning to her past relevant work, but capable of performing other substantial gainful activity. The Appeals Council affirmed the denial of benefits on November 2, 2001, thereby making the decision ripe for judicial review. Plaintiff commenced a civil action and, on January 7, 2003, this Court issued a remand directing the ALJ to (1) hold a second hearing; (2) include the assessment of Plaintiff's physical abilities by consultative examiner Dr. Gordon in a hypothetical question to the vocational expert to determine whether there were sedentary jobs that Plaintiff could perform; and (3) consider consulting a medical expert to testify regarding Plaintiff's fibromyalgia.

At the second administrative hearing, a different ALJ consulted a medical expert, but failed to present Dr. Gordon's assessment in a hypothetical question to the vocational expert. On February 17, 2005, the ALJ concluded that Plaintiff retained the residual functional capacity to perform a limited range of light work. The Appeals Counsel again denied review and, on March 19, 2008, Plaintiff commenced a second civil action in federal court. Plaintiff filed her Request for Review on October 26, 2009 and, on November 25, 2009, the Commissioner responded with a Motion to Voluntarily Remand the case for further administrative proceedings. Specifically, the Commissioner indicated that an ALJ should consider the opinion of consultative examiner Dr. Gordon and address a hypothetical to the vocational expert incorporating Dr. Gordon's opinion. Plaintiff, however, opposed this Motion and sought reversal and calculation of benefits in lieu of a remand for a new hearing. Among other bases for her opposition, Plaintiff contended that the second ALJ violated the law of the case doctrine by finding that Plaintiff could perform light work, when the first ALJ originally found that she was limited to sedentary work.

The case was referred to Magistrate Judge M. Faith Angell, who held oral argument on March 31, 2010. By way of Report and Recommendation dated November 16, 2010, Judge Angell rejected Plaintiff's various arguments and recommended that the matter be remanded for an ALJ to consider the opinion of consultative examiner Dr. Gordon. Plaintiff filed no objections and, on December 8, 2010, this Court approved the Report and Recommendation and remanded the case for further proceedings.

On February 25, 2011, Plaintiff filed an application for attorney's fees under the EAJA, seeking a total of $7,756.75 plus filing fee costs of $350. The Commissioner responded, requesting that the Court reduce the allowable fees to $4,916.75. On March 24, 2011, Plaintiff filed a Reply Brief opposing the Commissioner's arguments and seeking an additional fee award of $289 for time spent responding to part of the Commissioner's brief. The matter is now ripe for the Court's consideration.


Pursuant to 28 U.S.C. § 2412(b):

Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys, in addition to the costs which may be awarded pursuant to subsection (a), to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award.

Id. The United States Supreme Court has explained that "[t]he 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. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

The EAJA permits awards of attorney's fees only to the extent they are reasonable. Citizens Council of Del. Cnty. v. Brinegar, 741 F.2d 584, 594-95 (3d Cir. 1984). The party seeking attorney's fees thus has the burden to prove that its request is reasonable. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990); Walton v. Massanari,177 F. Supp. 2d 359, 361 (E.D. Pa. 2001). "To meet its burden, the fee petitioner must 'submit evidence supporting the hours worked and rates claimed.'" Rode, 892 F.2d at 1183 (quoting Hensley, 461 U.S. at 433). A party seeking attorney fees "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." Hensley, 461 U.S. at 434. When evaluating a request for fees, the Court should exclude hours that were not reasonably expended. Rode, 892 F.2d at 1183. Although the district court retains discretion to adjust the amount of the fee award, Barry v. Astrue, No. CIV.A.05-1825, 2007 WL 2022085, at *5 (E.D. Pa. July 9, 2007), it is well-settled that "the district court may not award less in fees than requested unless the opposing party makes specific objections to the fees requested." United States v. Eleven Vehicles, Their Equip. & Accessories, 200 F.3d 203, 211 (3d Cir. 2001).


In the present case, Plaintiff seeks attorneys fees in the total amount of $8,045.75 plus filing fees in the amount of $350, representing a total of 45.33 hours at a rate of $177.50 per hour. The Commissioner objects to sixteen of those hours on the basis of two separate grounds. First, the Commissioner challenges the amount of time spent in preparation of Plaintiff's Request for Review in this Court. Second, the Commissioner claims that any time ...

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