Taylor v. Social Security Administration Commissioner

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
ROBERT TAYLOR 	PLAINTIFF
v. 	CIVIL NO. 5:22-05139
KILOLO KIJAKAZI, Commissioner
Social Security Administration 	DEFENDANT
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Plaintiff, Robert Taylor, appealed the Commissioner’s denial of benefits to this Court. On
July 24, 2023, U.S. District Judge Timothy L. Brooks, adopted the undersigned’s Report and
Recommendation, remanding Plaintiff’s case to the Commissioner pursuant to sentence four of 42
U.S.C. § 405(g). (ECF Nos. 26 & 27).
1. 	Background
On October 23, 2023, Plaintiff filed a Motion seeking an award of attorney’s fees and costs
under 28 U.S.C. § 2412, the Equal Access to Justice Act (hereinafter “EAJA”). 	(ECF No. 28).
Defendant responded on October 25, 2023, offering no objections to the Motion. (ECF No. 30).
2. 	Applicable Law
Pursuant to the EAJA, 28 U.S.C. § 2412(d)(1)(A), a court must award attorney’s fees to a
prevailing social security claimant unless the Commissioner’s position in denying benefits was
substantially justified. The burden is on the Commissioner to show substantial justification for the
government’s denial of benefits. 	Jackson v. Bowen, 807 F.2d 127, 128 (8th Cir. 1986) (“The
[Commissioner] bears the burden of proving that its position in the administrative and judicial
proceeding below was substantially justified.”) An EAJA application must be made within thirty
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days of a final judgment in an action, see 28 U.S.C. § 2412(d)(1)(B), or within thirty days after the
sixty-day period for an appeal has expired. See Shalala v. Schaefer, 509 U.S. 292, 298 (1993).
An award of attorney’s fees under the EAJA is appropriate even though, at the conclusion
of the case, plaintiff’s attorney may be authorized to charge and collect a fee pursuant to 42 U.S.C.
§ 406(b)(1). 	Recovery of attorney’s fees under both the EAJA and 42 U.S.C. § 406(b)(1) was
specifically allowed when Congress amended the EAJA in 1985. See Gisbrecht v. Barnhard, 535
U.S. 789, 796 (2002) (citing Pub. L. No. 99-80, 99 Stat. 186 (1985)). The United States Supreme
Court stated that Congress harmonized an award of attorney’s fees under the EAJA and under 42
U.S.C. § 406(b)(1) as follows:
Fee awards may be made under both prescriptions [EAJA and 42 U.S.C. §
406(b)(1)], but the claimant’s attorney must “refund[d] to the claimant the amount
of the smaller fee.” . . . 	“Thus, an EAJA award offsets an award under Section
406(b), so that the [amount of total past-due benefits the claimant actually receives]
will be increased by the . . . EAJA award up to the point the claimant receives 100
percent of the past due benefits.”
Id. Furthermore, awarding fees under both acts facilitates the purpose of the EAJA, which is to
shift to the United States the prevailing party’s litigation expenses incurred while contesting
unreasonable government action. See id.; see also Cornella v. Schweiker, 728 F.2d 978, 986 (8th
Cir. 1984).
The statutory ceiling for an EAJA fee award is $125.00 per hour. See U.S.C. §
2412(d)(2)(A). A court is authorized to exceed this statutory rate if “the court determines that an
increase in the cost of living or a special factor, such as the limited availability of qualified
attorneys for the proceedings involved, justifies a higher fee.” 	Id. 	A court may determine that
there has been an increase in the cost of living and may thereby increase the attorney’s rate per
hour, based upon the United States Department of Labor’s Consumer Price Index (“CPI”). See
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Johnson v. Sullivan, 919 F.2d 503, 504 (8th Cir. 1990). 	Pursuant to General Order 391, which
references the CPI- South Index, the Court has determined that enhanced hourly rates based on a
cost-of-living increase is appropriate.
3. 	Discussion
In the present action, Plaintiff’s case was remanded to the Social Security Administration.
(ECF No. 27). Defendant does not contest Plaintiff’s claim that he is the prevailing party. The
Court construes Defendant’s lack of objection as an admission that the Government’s decision to
deny benefits was not “substantially justified” and thus, Plaintiff is the prevailing party.
Plaintiff’s Motion requests an award of fees in the amount of $6,996.00, seeking
compensation for itemized legal work completed during 2022 at the hourly rate of $220 and during
2023 at an hourly rate of $220. Hourly rates are authorized by the EAJA so long as the CPI-South
Index justifies this enhanced rate. See General Order 39; see also 28 U.S.C. § 2412(d)(2)(A) and
Johnson, 919 F.2d at 504. Here, the Court finds the CPI-South Index authorized hourly rates of
$221 during 2022, and $236 during 2023; however, it is this Court’s practice to award the rate
requested by counsel where the requested rate is lower than the authorized rate. 	To calculate
recoverable fees, the Court will utilize the proposed hourly rate of $220 for legal work completed
during both 2022 and 2023. Plaintiff also seeks recovery of his filing fee of $402.00.
Although Defendant offers no objection, the Court independently has reviewed Plaintiff’s
submissions, and upon review, finds Plaintiff should be awarded attorney’s fees in the amount of
1 Per General Order 39, the allowable rate for each year is as follows, and for simplicity’s sake,
the figure is rounded to the next dollar:
2022 – 269.263 x 125 divided by 152.4 (March 1996 CPI – South) = $220.85/hour ~ $221.
2023 – 288.205 x 125 divided by 152.4 (December 2022 CPI – South) = $236.39/hour ~ $236.
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$6,996.00 for work performed by his legal team during 2022-2023. 	This amount reflects 31.8
hours of work by counsel at the hourly rate of $220, which was reasonable and resulted in remand
to the Commissioner. Plaintiff is also entitled to recover his filing fee of $402 which is not paid as
an expense under EAJA but instead should be paid from the Judgment Fund administered by the
U.S. Treasury. See 28 U.S.C. § 2412(a). The Court awards the filing fee as costs. 28 U.S.C. §1920.
The Court thus recommends that Plaintiff’s Motion for Attorney Fees (ECF No. 28) be
GRANTED, and Plaintiff awarded attorney’s fees in the amount of $6,996.00 and costs/filing
fees in the amount of $402.00, for a total award of $7,398.00, which amount should be paid
in addition to, and not out of, any past due benefits which Plaintiff may be awarded in the
future. Pursuant to Astrue v. Ratliff, 130 S.Ct. 2521 (2010), the EAJA award must be awarded to
the “prevailing party” or the litigant. 	However, if Plaintiff has executed a valid assignment to
Plaintiff’s counsel of all rights in a fee award and Plaintiff owes no outstanding debt to the federal
government, the attorney’s fee may be awarded directly to Plaintiff’s counsel. 	The parties are
reminded that the EAJA award herein will be considered at such time as a reasonable fee is
determined pursuant to 42 U.S.C. § 406, to prevent a double recovery by counsel for Plaintiff.
The parties have fourteen days from receipt of the Report and Recommendation in
which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. 	The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
District Court.
RECOMMENDED the 30 th day of October 2023.
________________________________
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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