The opinion of the court was delivered by: GARY SHARPE, Magistrate Judge
Plaintiff Richard Greenidge (Greenidge) seeks to recover attorney's
fees and expenses under the Equal Access to Justice Act (EAJA),
28 U.S.C. § 2412, based on a remand for a redetermination of Social
Security benefits under Sentence Four of 42 U.S.C. § 405(g). The
Commissioner of Social Security (Commissioner) opposes the application
arguing that the claimed hours and requested hourly rate are excessive
and unreasonable. Upon review of the submissions and applicable law,
Greenidge's motion for attorney fees is GRANTED in part, for a total
award of $7,407.68.
On January 22, 2001, Greenidge filed an application for Social Security
disability benefits and supplemental security income which was
subsequently denied.*fn1 (Tr. 74, 92-94).*fn2 He appealed, and on April
23, 2002, a hearing was held before Administrative Law Judge Thomas P.
Zolezzi (ALJ). On August 8, 2002, the ALJ issued a decision finding that
Greenidge was disabled as of January 22, 2001, but not prior thereto.
(Tr. 18-25). On August 30, Greenidge appealed the ALJ's decision as to
the date of onset of his disability and the ALJ's refusal to reopen his
prior applications for benefits.*fn3 (Tr. 11); Pl.'s Br. at 2, Dkt. No.
11. The ALJ's determination of benefits became the final decision of the
Commissioner after the Appeals Council denied review on February 6,
2004. (Tr. 4-7).
On April 5, 2004, Greenidge brought this action pursuant to
42 U.S.C. §§ 405(g) and 1383(c)(3) seeking review of the Commissioner's
final determination. See Compl., Dkt. No. 1. On July 15, the Commissioner
answered and filed an administrative transcript, and Greenidge then filed
his brief. See Dkt. Nos. 3, 4, 11. On December 2, the parties entered
into a stipulation to remand the case for a redetermination of benefits.
See Dkt. No. 14. On December 3, the court entered an order and judgment
reversing the ALJ's decision and remanding the case under Sentence Four
of 42 U.S.C. § 405(g) pursuant to the stipulation agreement. See Dkt.
Nos. 15, 16. On December 13, Greenidge applied for taxable costs in the
amount of $179.93 which were
subsequently awarded. See Dkt. No. 17, 22. On December 17, 2004,
Greenidge also submitted a motion*fn4 for attorney's fees under the EAJA
in the amount of $12,981.10. See Dkt. Nos. 18-21. The Commissioner
opposed Greenidge's application for attorney's fees as excessive and
unreasonable. See Dkt. No. 23. On January 21, 2005, Greenidge was granted
leave to submit a reply brief which was subsequently filed with the
court. See Dkt. Nos. 24, 25, 26.
A. Equal Access to Justice Act, 28 U.S.C. § 2412
"The EAJA contains two distinct and express statutory waivers of
sovereign immunity permitting the recovery of attorneys' fees in lawsuits
brought by or against the United States." Kerin v. U.S. Postal Service,
218 F.3d 185, 189 (2d Cir. 2000) (discussing the differences between
28 U.S.C. §§ 2412(b) and (d)). Ordinarily, attorneys' fees awarded under
the EAJA may not exceed the statutory rate per hour, except where the
Commissioner has acted in bad faith. See Wells v. Bowen, 855 F.2d 37, 46
(2d Cir. 1988). This bad faith requirement is incorporated in 28 U.S.C.
§ 2412(b). See, e.g., Sierra Club v. U.S. Army Corps of Eng'rs,
776 F.2d 383, 390 (2d Cir. 1985).
Under § 2412(b), the statutory language imposes "no ceiling on the
hourly rate used to calculate bad faith fees, requiring only that such
fees be reasonable." Kerin, 218 F.3d at 190 (quotations omitted). An
award of fees under this section "requires far more egregious conduct on
the government's part than is required under section 2412(d) and it
exposes the government to liability for costs and fees above and beyond
the limit set by section 2412(d)." Wells, 855 F.2d at 46 (citations
omitted). The Second Circuit has held that "awards under the bad faith
exception must be supported by clear evidence, and that the factual
findings of the court below must exhibit a high degree of specificity."
Kerin, 218 F.3d at 192 (citations omitted) (emphasis in original).
In contrast, 28 U.S.C. § 2412(d)(2)(A) mandates that the hourly rate
for attorney's fees shall be based upon the "prevailing market rate for
the kind and quality of services provided," not to exceed "$125 per
hour," and further provides for adjustment of the hourly rate at the
based on "cost of living"*fn5 increases or other "special factors." See
28 U.S.C. § 2412(d)(2)(A); see also Jackson v. Heckler, 629 F. Supp. 398,
405 (S.D.N.Y. 1986). This section "is an entirely statutory basis for
the award of attorneys' fees." Kerin, 218 F.3d at 189. Moreover, a
prevailing party will be awarded reasonable attorney's fees under §
2412(d)(2)(A) unless the government demonstrates that its position in the
litigation was "substantially justified" or that "special circumstances
make an award just." 28 U.S.C. § 2412(d)(1)(A).
"To be considered a prevailing party, a plaintiff must have achieved a
judicially-sanctioned material alteration of the legal relationship
between the parties." McKay v. Barnhart, 327 F. Supp. 2d 263, 266
(S.D.N.Y. 2004) (citing Robertson v. Giuliani, 346 F.3d 75, 79 (2d Cir.
2003)). The Supreme Court has held that a remand under Sentence Four of
42 U.S.C. § 405(g) is a final judgment that qualifies a plaintiff for
prevailing party status. See Shalala v. Schaefer, 509 U.S. 292, 302
(1993). "Thus, not only are §§ 2412(b) and (d) statutorily distinct, but
the elements required to sustain a fee award under each subsection are
different as well." Kerin,
218 F.3d at 191.
Although it appears that Greenidge is only seeking attorney's fees
under 28 U.S.C. § 2412(d), he attempts to argue bad faith in his brief
without any specific reference to the applicable subsection of
28 U.S.C. § 2412. See Pl.'s Br. pp. 4-6, Dkt. No. 21. Inasmuch as
Greenidge purports to seek bad faith fees under 28 U.S.C. § 2412(b), this
court finds no merit or supporting evidence for such an award. See id. at
6. The fact that the Commissioner filed an answer and subsequently
entered into a stipulation for remand may represent unreasonable behavior
to Greenidge, but it is not sufficient evidence of any bad faith.*fn6
See id. at 5; see, e.g., Garcia v. Sullivan, 781 F. Supp. 969, 974
As the application relates to attorney's fees under § 2412(d), the
Commissioner does not dispute that Greenidge is entitled to an award of
the statutory rate fees. See Def.'s Br., Dkt. No. 23. Instead, she argues
that Greenidge's claimed hours and hourly rate for his attorney's fees
are both excessive and ...