Johnson v. O'Malley

D. Nebraska

Johnson v. O'Malley

DecidedJune 28, 2024

Docket8:23-cv-00499

StatusUnknown

This text of Johnson v. O'Malley (Johnson v. O'Malley) is published on Counsel Stack Legal Research, covering District Court, D. Nebraska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Johnson v. O'Malley, (D. Neb. 2024).

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

SHARON JOHNSON,

Plaintiff, 8:23-CV-499

vs. ORDER MARTIN O'MALLEY, Commissioner of Social Security,

Defendant.

This matter is before the Court upon the Plaintiff's unopposed motion for award of attorney fees pursuant under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (filing 19), seeking an award of fees and expenses in the amount of $3,216.74, which represents 2.1 hours of work at rate of $244.63 per hour and 10.8 hours of work at a rate of $250.28 per hour, and a filing fee of $402.1 Filing 18-3. The Court has determined that plaintiff was the prevailing party in this action, as the application for fees was filed in a timely fashion,2 and the Commissioner's decision was remanded to the Commissioner for further proceedings on the government's concession that the position of the

1 The maximum hourly fee of $125 specified in 28 U.S.C. § 2412(d)(1)(D)(2)(A) has been adjusted to account for inflation. 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 18) 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 $3,216.74 and costs of $402.

3. That sum shall be sent to plaintiff's counsel, Mr. Kappelman, who shall be responsible remitting to Ms. Schram her portion of the award.

Dated this 28th day of June, 2024. BY THE COURT: M. Gerrard enior United States District Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

SHARON JOHNSON,

Plaintiff, 8:23-CV-499

vs. ORDER MARTIN O'MALLEY, Commissioner of Social Security,

Defendant.

This matter is before the Court upon the Plaintiff's unopposed motion for award of attorney fees pursuant under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (filing 19), seeking an award of fees and expenses in the amount of $3,216.74, which represents 2.1 hours of work at rate of $244.63 per hour and 10.8 hours of work at a rate of $250.28 per hour, and a filing fee of $402.1 Filing 18-3. The Court has determined that plaintiff was the prevailing party in this action, as the application for fees was filed in a timely fashion,2 and the Commissioner's decision was remanded to the Commissioner for further proceedings on the government's concession that the position of the

1 The maximum hourly fee of $125 specified in 28 U.S.C. § 2412(d)(1)(D)(2)(A) has been adjusted to account for inflation. 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 18) 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 $3,216.74 and costs of $402.

3. That sum shall be sent to plaintiff's counsel, Mr. Kappelman, who shall be responsible remitting to Ms. Schram her portion of the award.

Dated this 28th day of June, 2024. BY THE COURT: M. Gerrard enior United States District Judge

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