IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FORT SMITH DIVISION

MATTHEW NICHOLS PLAINTIFF

vs. Civil No. 2:22-cv-02136

COMMISSIONER, SOCIAL SECURITY ADMINISTRATION DEFENDANT

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Pending now before the Court is Plaintiff’s Motion for Attorney’s Fees Pursuant to the Equal Access to Justice Act (“EAJA”). ECF No. 22. With this Motion, Plaintiff seeks an EAJA award of $8,399.50. Id. Defendant responded to this Motion and represented the Parties stipulated to a total EAJA award of $8,045.00. ECF No. 23. Pursuant to the provisions of

(b)(1) and (3) (2009), the Honorable P. K. Holmes, III referred this Motion to the Court for the purpose of making a report and recommendation. In accordance with that referral, this Court enters the following report and recommendation. 1. Background: Matthew Nichols (“Plaintiff”) appealed to this Court from the Secretary of the Social Security Administration’s (“SSA”) denial of his request for disability benefits. ECF No. 1. On May 15, 2023, Plaintiff’s case was reversed and remanded pursuant to Sentence Four of

(g). ECF Nos. 20-21. On August 14, 2023, Plaintiff filed the present Motion requesting an award of attorney’s fees under the EAJA. ECF No. 22. With this Motion, Plaintiff requests an award of attorney’s fees in the total amount of $8,399.50.

This amount includes 3.7 hours of attorney work from 2022 at an hourly rate of $220.00, 33.9 hours of attorney work from 2023 at an hourly rate of $220.00, and 1.7 hours of paralegal work at an hourly rate of $75.00.

In response, Defendant filed a stipulation, stating the Parties have agreed to an EAJA award of $8,045.00. ECF No. 23. 2. Applicable Law: Pursuant to the EAJA,

(d)(1)(A), a court must award attorney's fees to a prevailing social security claimant unless the Secretary’s position in denying benefits was substantially justified. The Secretary has the burden of proving that the denial of benefits was substantially justified. See Jackson v. Bowen,

(8th Cir. 1986) (“The Secretary bears

the burden of proving that its position in the administrative and judicial proceedings below was substantially justified”). An EAJA application also must be made within thirty days of a final judgment in an action, See

(d)(1)(B), or within thirty days after the sixty day time for appeal has expired. See Shalala v. Schaefer,

(1993). An award of attorney’s fees under the EAJA is appropriate even though, at the conclusion of the case, the plaintiff’s attorney may be authorized to charge and to collect a fee pursuant to

(b)(1). Recovery of attorney’s fees under both the EAJA and

(b)(1) was specifically allowed when Congress amended the EAJA in 1985. See Gisbrecht v. Barnhart,

(2002) (citing

Stat. 186 (1985)). The United States Supreme Court stated that Congress harmonized an award of attorney’s fees under the EAJA and under

(b)(1) as follows: Fee awards may be made under both prescriptions [EAJA and

(b)(1)], but the claimant’s attorney must “refun[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.”

Furthermore, awarding fees under both acts facilitates the purposes 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.; Cornella v. Schweiker,

(8th Cir. 1984). The statutory ceiling for an EAJA fee award is $125.00 per hour. See

(d)(2)(A). A court is only 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.”

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,

(8th Cir. 1990). See also General Order 39 (“Attorney’s Fees Under the Equal Access to Justice Act”). 3. Discussion: In the present action, Plaintiff’s case was remanded to the SSA. ECF Nos. 20-21. Defendant does not contest Plaintiff’s claim that he is the prevailing party and does not oppose his application for fees under the EAJA. ECF No. 22. The Court construes the lack of opposition to this application 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 $8,399.50. ECF No. 22. This amount includes 3.7 hours of attorney work from 2022 at an hourly rate of $220.00, 33.9 hours of attorney work from 2023 at an hourly rate of $220.00, and 1.7 paralegal hours at an hourly rate of $75.00.

These requested hourly rates for attorney work are authorized by the EAJA as long as the CPI-South Index justifies these enhanced rates for 2022 and 2023. See General Order 39. See also

(d)(2)(A); Johnson,

. In the present action, the attorney hourly rate of $220.00 for 2022 and 2023 is authorized by the CPI-South Index for those years. Thus, the Court recommends that amount be awarded. The Court has also reviewed Plaintiff’s request for 3.7 hours of attorney work from 2022 and 33.9 hours of attorney work from 2023. The Court has reviewed these requested hours and finds they are reasonable. The Cout has also reviewed the requested paralegal hours and finds they are reasonable and should be awarded. As for payment, attorney’s fees must be awarded to the “prevailing party” or the litigant. See

Astrue v. Ratliff,

(2010). Thus, these fees must be awarded to Plaintiff, not to Plaintiff’s attorney. However, if Plaintiff has executed a valid assignment to Plaintiff’s attorney of all rights in an attorney’s fee award and Plaintiff owes no outstanding debt to the federal government, the attorney’s fee may be awarded directly to Plaintiff’s attorney. 4. Conclusion: Based upon the foregoing, the Court recommends Plaintiff’s Motion for Attorney’s Fees (ECF No. 22) be GRANTED. Considering Plaintiff’s requested fees and the stipulation of the Parties, the Court should award Plaintiff $8,045.00.1 The Parties have fourteen (14) days from receipt of this Report and Recommendation in which to file written objections pursuant to

(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. See Thompson v. Nix,

(8th Cir. 1990). ENTERED this 29th day of August 2023. Barry A. Bryant /s/ HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE

1 This stipulated amount is less than the requested approved hourly rate and approved hours.