Flanigan v. Social Security Administration Commissioner

Opinion

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HARRISON DIVISION

BOBBI FLANIGAN PLAINTIFF

v. CIVIL NO. 21-3049

KILOLO KIJAKAZI, Commissioner Social Security Administration DEFENDANT

REPORT AND RECOMMENDATION

Plaintiff, Bobbi Flanigan, appealed the Commissioner’s denial of benefits to this Court. On July 27, 2022, 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. 17, 18). 1. Background On October 25, 2022, Plaintiff filed a motion seeking an award of $4,813.50 in attorney and paralegal fees under 28 U.S.C. § 2412, the Equal Access to Justice Act (hereinafter “EAJA”). (ECF No. 19). Defendant has not responded to the Motion. 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 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 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. 18). The Court construes Defendant’s lack of pleadings herein as an admission that the Government’s decision to deny benefits was not “substantially justified” and thus, Plaintiff is the prevailing party. Plaintiff requests attorney’s fees in the amount of $4,813.50. This request includes 3.20 hour of legal work completed during 2020 at an hourly rate of $203; 15.92 hours of work during 2021 at an hourly rate of $206; and 3.80 hours during 2022 at the rate of $221 per hour These 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. Plaintiff also seeks to recover .70 hours of paralegal time at the hourly rate of $75 per hour. The

Court finds the CPI-South Index authorized a 2020 hourly rate of $203, a 2021 hourly rate of $206 and a 2022 rate of $221. Additionally, the Court approves the paralegal rate of $75 per hour which is the rate customarily awarded for paralegal work in the Western District of Arkansas.

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:

2020 – 247.289 x 125 divided by 152.4 (March 1996 CPI – South) = $202.82/hour ~ $203. 2021 – 250.693 x 125 divided by 152.4 (March 1996 CPI – South) = $205.62/hour ~ $206. 2022 – 269.263 x 125 divided by 152.4 (March 1996 CPI – South) = $220.85/hour ~ $221.

2 The Court notes Plaintiff made an error, conducting 16.2 hours of legal work in 2021 but claiming only 15.9 hours. It is the Court’s practice to count fee petition errors against counsel, and the difference here de minimis. Despite the lack of objections by Defendant, this Court has completed an independent review of counsel’s remaining itemizations and finds all the fees sought were reasonably expended in obtaining Plaintiffs relief. The Court thus recommends that Plaintiff be awarded attorney’s fees and costs in the total amount of $4,813.50 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 Plaintiffs 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. IT IS SO ORDERED this 10" day of November 2022.

CHRISTY COMSTOCK UNITED STATES MAGISTRATE JUDGE