Lackey v. Social Security Administration Commissioner

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
DESMOND LACKEY 	PLAINTIFF
v. 	CIVIL NO. 5:24-05002-TLB-CDC
MARTIN J. O’MALLEY, Commissioner
Social Security Administration 	DEFENDANT
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Plaintiff, Desmond Lackey, appealed the Commissioner’s denial of benefits to this Court.
On June 3, 2024, U.S. District Timothy L. Brooks adopted the undersigned’s Report and
Recommendation, granting the unopposed remand of the Plaintiff’s case to the Commissioner
pursuant to sentence four of 42 U.S.C. § 405(g). (ECF Nos. 18, 19).
1. 	Background
On August 27, 2024, Plaintiff filed a Motion seeking an award of attorney’s fees in the
amount of $5,975.60 under 28 U.S.C. § 2412, the Equal Access to Justice Act (hereinafter
“EAJA”). 	(ECF No. 20). 	Defendant responded, offering no objection, on September 4, 2024.
(ECF No. 22). The Motion has been referred to the undersigned for Report and Recommendation.
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 ultimately was remanded to the Social Security
Administration on the unopposed motion of Defendant. (ECF No. 19). The Court first construes
Defendant’s lack of objection concerning substantial justification and prevailing party status as an
admission that the Government’s decision to deny benefits was not “substantially justified” and
thus, Plaintiff is the prevailing party.
Defendant does not object to the hourly rates claimed by Plaintiff. 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 an hourly rate of $236 during 2023 and $245 during 2024 and the
undersigned will employ these hourly rates when calculating Plaintiff’s fees. Plaintiff also seeks
recovery of fees for work performed by a paralegal at the hourly rate of $75 which is the
customarily awarded hourly rate for paralegal work in this District.
Plaintiff seeks compensation for 2.1 hours of attorney legal work during 2023, and 22.0
hours during 2024, along with 1.2 hours of paralegal work. 	Defendant does not object to these
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.
2024 – 298.754 x 125 divided by 152.4 (December 2023 CPI – South) = $245.04 ~ $245.00.
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hours. 	After independent review of Plaintiff’s itemized submissions, the Court finds counsel’s
claimed time was both reasonable and necessary. The undersigned recommends Plaintiff be
awarded attorney’s fees for 2.1 hours of attorney work during 2023 at a rate of $236, 22.0 hours
of attorney work during 2024 at the hourly rate of $245, and 1.20 hours of paralegal work at a rate
of $75 hour, for a total recommended award of $5,975.60.
The Court thus recommends that Plaintiff’s Motion for Attorney Fees (ECF No. 20) be
GRANTED, and Plaintiff awarded $5,975.60 in fees with this amount 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 12th day of September 2024.
________________________________
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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