Shipp v. Social Security Administration Commissioner

Opinion

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

DAVID F. SHIPP PLAINTIFF

v. CIVIL NO. 5:21-5065

KILOLO KIJAKAZI, Commissioner Social Security Administration DEFENDANT

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Plaintiff, David F. Shipp, appealed the Commissioner’s denial of benefits to this Court. On May 17, 2022, United States District Judge Timothy L. Brooks adopted the undersigned’s Report and Recommendation and remanded Plaintiff’s case to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). (ECF Nos. 17, 18). 1. Background On June 16, 2022, Plaintiff filed a motion for an award of $5,114.10 in attorney’s fees under 28 U.S.C. § 2412, the Equal Access to Justice Act (hereinafter “EAJA”), requesting compensation for 21.50 hours of legal work before the Court during 2021 at an hourly rate of $206 and 3.1 hours during 2022 at an hourly rate of $221. (ECF No. 19). Defendant responded on June 21, 2022, offering no objection to Plaintiff’s Motion. (ECF No. 22). 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 time 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 an enhanced hourly rate 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). Defendant does not contest Plaintiff’s claim that he is the prevailing party. The Court construes the lack of opposition as an admission that the government’s decision to deny benefits was not “substantially justified” and that Plaintiff is the prevailing party. Plaintiff requests a total award of fees in the amount of $5,114.10. This request includes 21.50 hours of legal work during 2021 at an hourly rate of $206 and 3.1 hours during 2022 at the rate of $221. 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. Here, the Court finds the CPI-South Index authorized an hourly rate of $206 in 2021 and a rate of $221 for 2022. While Defendant has no objection to either the hourly rate or hours claimed, the Court has conducted its independent review of counsel’s itemized statement and finds both the tasks completed and the hours claimed reasonable. Based on the foregoing, the undersigned

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.

recommends that Plaintiff be awarded an attorney’s fee award of $5,114.10 under the EAJA for 24.60 hours of legal work performed by his counsel during 2021-2022 at the respective rates of $206 (21.50 hours) and $221 (3.1 hours). The recommended fee award should be paid in addition to, and not out of, any past due benefits which Plaintiff may be award 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 taken into account at such time as a reasonable fee is determined pursuant to 42 U.S.C. § 406, in order 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 28th day of June 2022.

( Anes, Comatack CHRISTY COMSTOCK UNITED STATES MAGISTRATE JUDGE