RECOMMENDED DECISION ON PLAINTIFF'S MOTION FOR ATTORNEY FEES
The plaintiff has applied for an award of attorney feespursuant to the Equal Access to Justice Act ("EAJA"),28 U.S.C. § 2412, in this action in which she obtained a voluntary remand forfurther proceedings before the Social Security Administration.EAJA Application for Fees and Expenses ("Application") (DocketNo. 15).
The EAJA provides, in relevant part: [A] court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . . including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.28 U.S.C. § 2412(d)(1)(A). The commissioner concedes that theplaintiff was a prevailing party for these purposes. Defendant'sPartial Opposition to Plaintiff's Application for Attorney'sFees, etc. ("Opposition") (Docket No. 16) at 1. She makes noargument that her position was substantially justified or thatany special circumstances exist that would make an award unjust. Shechallenges the hourly rate of $160 sought by the plaintiff and .7hours of time charged before the complaint was filed. Id. at2-3.
The .7 hours to which the commissioner objects represents thesum total of two entries on the invoice attached to theapplication. On September 19, 2003 there is an entry for .4hours, consisting of "receipt and review of documents and AppealsCouncil denial from M. Currier." [Exhibit 1] to Application at. On September 25, 2003 there is an entry for .3 hours,described as "prepare forms and letter to client." Id. Thecommissioner contends that EAJA compensation is not available"for administrative time spent prior to the remand and filing ofthe complaint." Opposition at 2. She cites Sullivan v. Hudson,490 U.S. 877, 890-92 (1989), in support of her position. Id.However, that decision does not support the commissioner'sposition. In that case, the Supreme Court held that attorney feeswere not compensable under the EAJA for time spent representingthe claimant in non-adversarial administrative proceedings beforethe Social Security Administration after judicial remand Id.at 890-92. That is not the situation present here, wherereimbursement for time spent determining the basis for seekingjudicial review is the subject of the dispute. The amount of timespent in this activity is not unreasonable and the activity wasreasonably necessary to the filing of the appeal which led to thevoluntary remand The commissioner's objection to this time iswithout merit.
The commissioner also challenges the hourly rate sought by theplaintiff. The EAJA provides, in section 2412(d)(2)(A)(ii), that"attorney fees shall not be awarded in excess of $125 per hourunless the court determines that an increase in the cost ofliving or a special factor . . . justifies a higher fee." Thissubsection, which was amended in 1996 to increase the indicateddollar limit from $75 to $125, see Pub.L. 104-121, § 232(b0(1);28 U.S.C. § 2412, Historical and Statutory Notes, also providesthat the amount of fees awarded "shall be based upon prevailingmarket rates for the kind and quality of the services furnished." The commissioner contends that reimbursement in thiscase should be limited to the statutory maximum hourly rate, or,in the alternative, to $156 per hour, which she calculates toreflect the increase in the cost of living from 1996 to 2003,when most of the activity for which reimbursement is soughtactually took place. Opposition at 3.
The commissioner is aware that this court has not limited EAJArecovery to $125 per hour for the past several years and hasroutinely awarded an hourly rate that reflects the increase inthe cost of living since 1996. In this case, the number of hoursincurred in 2003 is 2.8 and the number incurred in 2004 is 2.4.Exhibit 1 at 1-2. Application of the commissioner's reducedhourly rate for 2003 would result in a decrease of $15.20 in thetotal fee sought of $982.00. This quibble represents aninconsequential amount not worthy of the court's time.
For the foregoing reasons, I recommend that the plaintiff beawarded a total of $982.00 in attorney fees.