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

SHELIA CAMPBELL PLAINTIFF

v. CIVIL NO. 5:23-cv-05063

KILOLO KIJAKAZI, Commissioner Social Security Administration DEFENDANT

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE Plaintiff, Shelia Campbell, appealed the Commissioner’s denial of benefits to this Court. After Plaintiff filed her brief, the Commissioner filed an unopposed Motion to Remand. (ECF No. 15). On September 13, 2023, U.S. District Judge Timothy L. Brooks, adopted the undersigned’s Report and Recommendation (ECF No. 17), granting the Commissioner’s unopposed Motion to Remand Plaintiff’s case pursuant to sentence four of

(g). (ECF Nos. 18 & 19). 1. Background On October 10, 2023, Plaintiff filed a Motion seeking an award of attorney’s fees and costs under

, the Equal Access to Justice Act (hereinafter “EAJA”). (ECF No. 20). Defendant responded on October 12, 2023, offering no objections to the Motion. (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 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,

(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

(d)(1)(B), or within thirty days after the sixty-day period for an 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, plaintiff’s attorney may be authorized to charge and 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. Barnhard,

(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 “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.”

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,

(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,

(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. 19). Defendant does not contest Plaintiff’s claim that she 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 $5,805.60, seeking compensation for itemized legal work completed during 2023 at an hourly rate of $236. Hourly rates are authorized by the EAJA so long as the CPI-South Index justifies this enhanced rate. See General Order 39; see also

(d)(2)(A) and Johnson,

. Here, the Court finds the CPI-South Index authorized an hourly rate of $236 during 2023, and this rate will be used in determining the award of fees.

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 $5,805.60 for work performed by her legal counsel during 2023. This amount reflects 24.6 hours of work by counsel at the hourly rate of $236, work which was reasonable and resulted in the Commissioner filing a Motion to Remand.

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:

2023 – 288.205 x 125 divided by 152.4 (December 2022 CPI – South) = $236.39/hour ~ $236. The Court thus recommends that Plaintiffs Motion for Attorney Fees (ECF No. 20) be GRANTED, and Plaintiff awarded attorney’s fees in the amount of $5,805.60, 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,

(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 Plaintiffs counsel. The parties are reminded that the EAJA award herein will be considered at such time as a reasonable fee is determined pursuant to

, 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

(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 this 18" day of October 2023.

CHRISTY COMSTOCK UNITED STATES MAGISTRATE JUDGE