United States District Court, E.D. Louisiana
ORDER AND REASONS
NANNETTE JOLIVETTE BROWN, District Judge.
Before the Court is Plaintiff Lyndon Butler's ("Plaintiff") Motion for Attorney's Fees Pursuant to the Equal Access to Justice Act. The Court has considered the motion, the memorandum in opposition, the memorandum in reply, the record, and applicable law. For the reasons discussed below, the Court will grant the motion.
On April 25, 2013, Plaintiff filed a complaint against Defendant Carolyn W. Colvin, Acting Commissioner of the Social Security Administration (the "Commissioner"), alleging that the Commissioner had improperly denied his claims for disability insurance benefits. He subsequently moved for summary judgment on September 9, 2013,  and on December 2, 2013, the Commissioner filed a cross-motion for summary judgment. Plaintiff specifically requested remand of his claim to an Administrative Law Judge ("ALJ") pursuant to sentence four of 42 U.S.C. § 405(g) for a new hearing or payment of benefits.
The Magistrate Judge issued a Report and Recommendation to this Court on June 9, 2014, recommending that Plaintiff's motion for summary judgment be denied, the Commissioner's crossmotion be granted and the case be dismissed with prejudice. After Plaintiff filed timely objections to the Report and Recommendation, the Court reviewed the motions for summary judgment de novo and, on August 26, 2014, declined to adopt the recommendation. The Court found that the ALJ erred in failing to evaluate all treating physicians' opinions and in failing to address Plaintiff's entitlement to a closed period of disability. Accordingly, the Court remanded this matter to the ALJ pursuant to 42 U.S.C. § 405(g) for a new hearing and more adequate consideration of the record.
Plaintiff filed the pending motion for attorney's fees on October 15, 2014. The Commissioner filed a memorandum in opposition on October 21, 2014,  and Plaintiff filed a reply on November 5, 2014, with leave of Court.
II. Parties' Arguments
A. Plaintiff's Motion for Attorney's Fees
Plaintiff asserts that he is entitled to attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). Plaintiff contends that he is a prevailing party under the EAJA because he has received a judgment in his favor remanding his case. Therefore, he argues that he is entitled to attorney's fees unless the Commissioner can prove that her position in this mater was "substantially justified."
Plaintiff requests attorney's fees of $7, 875.00 and costs in the amount of $350.00, plus any amount which may be necessitated by the Commissioner's opposition to this motion. This amount is based on an hourly rate of $175.00 and 45 hours of work. Plaintiff asserts that the number of hours claimed are wholly reasonable and necessary. He argues that the hourly rate of $175.00 is calculated on the basis of the $125.00 hourly rate authorized by the EAJA enhanced by the cost of living reflected by the Consumer Price Index.
B. The Commissioner's Memorandum in Opposition
The Commissioner filed a memorandum in opposition disputing only the requested hourly rate. She notes that the Fifth Circuit has adopted the "lodestar" approach for calculating reasonable attorney fees in social security cases, where the number of attorney hours reasonably expended on litigation is multiplied by a reasonable hourly rate. The Commissioner asserts that the case cited by Plaintiff to support the requested hourly rate was unopposed, and that the Commissioner consistently opposes fee rates above $160 per hour. She contends that a $160 per hour rate is appropriate for social security cases arising in this district.
C. Plaintiff's Memorandum in Reply
In reply, Plaintiff asserts that the contingent EAJA hourly rate of $175.00 is much lower than the $275.00 hourly rate counsel charges for non-contingent legal services. Counsel included an affidavit attesting to the $275.00 hourly rate he receives for non-contingent legal services. Plaintiff also ...