Riesberg v. Saul ( 2020 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA TANYA M. RIESBERG, Plaintiff, 8:18-CV-456 vs. MEMORANDUM AND ORDER ANDREW M. SAUL, Commissioner of the Social Security Administration, Defendant. This matter is before the Court upon the plaintiff's Motion for Award of Attorney Fees Pursuant under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (filing 23). The defendant has no objection to awarding of fees and expenses in the amount of $2,523.02, which represents 0.6 hours of work at a rate of $201.60 per hour, 11.1 hours of work at a rate of $205.25 per hour, and 0.6 hours of work at a rate of 206.30 per hour.1 Filing 23-2. 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 further proceedings; that the application for fees was filed in a timely fashion;2 and that the position of the 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 filing 23-1 at 2-3. 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). Commissioner was not substantially justified because the administrative law judge made findings that were not supported by substantial evidence. 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. The plaintiff's Motion for Award of Attorney Fees Pursuant under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (filing 23) is granted. 2. By separate document, the Court shall enter judgment for the plaintiff and against the defendant providing that the plaintiff is awarded attorney fees of $2,523.02. Dated this 27th day of February, 2020. BY THE COURT: i M. Gerrard hief United States District Judge