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February 11, 2005.

JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: GARY SHARPE, Magistrate Judge


I. Introduction

  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.

  II. Background

  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 Page 3 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 Page 4 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.

  III. Discussion

  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. Page 5 § 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 court's discretion, Page 6 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, Page 7 218 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 (S.D.N.Y. 1991).

  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 ...

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