United States District Court, W.D. Kentucky, Owensboro Division
REBECCA L. JOHNSON, PLAINTIFF
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT
MEMORANDUM OPINION AND ORDER
BRENT BRENNENSTUHL UNITED STATES MAGISTRATE JUDGE.
the Court is the motion of Plaintiff, Rebecca L. Johnson, for
attorney fees under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(a)(1) and
(d)(1)(A) (DN 22). Defendant, Nancy A. Berryhill,
Commissioner of Social Security (“Commissioner”),
has filed a response (DN 23). Johnson's time to reply has
expired. For the reasons set forth below, Johnson's
motion is denied.
to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties
have consented to the undersigned United States Magistrate
Judge conducting all further proceedings in this case,
including issuance of a memorandum opinion and entry of
judgment, with direct review by the Sixth Circuit Court of
Appeals in the event an appeal is filed (DN 9). This matter
is ripe for determination.
September 12, 2016, Johnson filed a complaint seeking
judicial review of the final decision of the Commissioner
pursuant to 42 U.S.C. § 405(g) (DN 1). The Commissioner
filed an answer and a copy of the administrative record (DN
7, 8). Johnson filed a fact and law summary with a supporting
memorandum (DN 11, 11-1). Thereafter, the Commissioner filed
a fact and law summary with a supporting memorandum (DN 16).
The undersigned issued a memorandum opinion and order
reversing the final decision of the Commissioner, and,
pursuant to sentence four of 42 U.S.C. § 405(g),
remanding the case to the Commissioner for further
proceedings (DN 17). The Commissioner filed a motion for
reconsideration (DN 19) and Johnson filed a response (DN 20).
In a memorandum opinion and order entered October 11, 2017,
the undersigned denied the Commissioner's motion for
reconsideration (DN 19).
October 31, 2017, Johnson filed her motion for an award of
attorney fees (DN 22). In support of her motion,
Johnson's attorney has submitted a memorandum, an
itemization of time, and a proposed order (DN 22, 22-1).
EAJA allows the award of attorney fees and other expenses
against the government provided that:
(1) The party seeking such fees is the “prevailing
party” in a civil action brought by or against the
(2) An application for such fees, including an itemized
justification for the amount requested, is timely filed
within thirty days of final judgment in the action;
(3) The position of the government is not substantially
justified; and (4) No. special circumstances make an award
U.S.C. §§ 2412(d)(1)(A), (B). The absence of any of
the above factors precludes an award of fees. 28 U.S.C.
§§ 2412(d)(1)(A), (B).
Johnson seeks an award of attorney fees in the amount of $3,
218.75 for 25.75 hours of work at the EAJA's statutory
rate of $125.00 per hour (DN 22). The parties agree that
Plaintiff was the prevailing party, and neither argues that
there were any special circumstances (DN 22, 23). The
Commissioner argues that the motion should be denied because
her position was substantially justified (DN 23, 23-1).
Alternatively, the Commissioner contends that the ...