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Burger v. Astrue

January 15, 2009

NICOLE BURGER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



DECISION AND ORDER

I. INTRODUCTION

Presently before this Court is Plaintiff's Motion for Attorneys' Fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. (Docket No. 28). Plaintiff, through her attorney of record, seeks an award of $20,488.50, for 121.8 hours of work performed before this Court and in connection with an appeal to the United States Court of Appeals for the Second Circuit. For the following reasons, Plaintiff's motion is denied to the extent that it seeks attorneys' fees for work performed before the District Court and denied without prejudice with regard to the request for fees incurred on appeal to the Second Circuit.

II. BACKGROUND

Plaintiff commenced this action on May 12, 2005, by filing a Complaint in the United States District Court for the Northern District of New York. (Docket No. 1). Plaintiff alleged that she has been disabled, as defined under the Social Security Act, since January 8, 2000, due to obesity, leg problems, and infection, and was therefore entitled to receive Social Security disability benefits. In this action, Plaintiff challenged the determination made by an Administrative Law Judge ("ALJ") that she was not entitled to receive such benefits.

On February 27, 2007, after briefing by the parties, this Court entered a Decision and Order affirming the decision of the ALJ and granting judgment in favor of the Commissioner. (Docket No. 18). The Clerk of Court entered judgment in favor of the Commissioner. (Docket No. 19). On March 20, 2007, this Court issued an Amended Decision and Order correcting certain clerical matters contained in the originally-issued Decision and Order. (Docket No. 20). Plaintiff appealed to the United States Court of Appeals for the Second Circuit.

On June 27, 2008, the Second Circuit issued a Summary Order remanding the case to this Court. In pertinent part, the Second Circuit concluded that "[u]nder the circumstances,... the ALJ was obliged himself to develop the medical record more fully to ensure an accurate assessment of [Plaintiff's] residual functional capacity." (Summary Order, attached to Docket No. 24, at p. 4). In this regard, the Second Circuit specifically mentioned the regulations permitting the ALJ to pay for a consultative examination and directed that the case be remanded to the ALJ "with directions to develop the administrative record further and to reconsider [Plaintiff's] claim for disability benefits." Id.

On August 13, 2008, in accordance with the directive of the Second Circuit, this Court entered an Order remanding the case to the Commissioner for further development of the administrative record and further proceedings consistent with the Summary Order entered by the Second Circuit. (Docket No. 26). Judgment remanding the case was entered by the Clerk of Court on that same date. (Docket No. 27).

On September 5, 2008, Plaintiff filed a petition with the Second Circuit for attorneys' fees pursuant to the EAJA. Plaintiff filed a motion seeking the same relief before this Court on September 9, 2008, submitting an attorney affidavit and memorandum of law in support.

(Docket No. 28). The Defendant Commissioner filed a memorandum of law in opposition to the motion. (Docket No. 29). Plaintiff submitted a reply affidavit and reply memorandum of law in further support of her motion. (Docket No. 30).

On November 17, 2008, Plaintiff filed a Status Report (Docket No. 31), providing this Court with the Second Circuit's Amended Order, dated November 5, 2008, denying Plaintiff's application for attorneys' fees without prejudice to renew following the conclusion of proceedings before this Court. (Amended Order, attached to Docket No. 31).

III. DISCUSSION

The EAJA provides, in pertinent part, as follows:

[A] court shall award [1] to a prevailing party... fees and other expenses,... incurred by that party in any civil action..., brought by or against the United States in any court having jurisdiction of that action, [2] unless the court finds that the position of the United States was substantially justified or [3] that special circumstances make an award unjust.

28 U.S.C. ยง 2412(d)(1)(A). There is no dispute in this case that Plaintiff is a "prevailing party" pursuant to the EAJA in light of the Second Circuit's conclusion that this case should be remanded to the ALJ ...


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