IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION

BRENDA CARPENTER PLAINTIFF

v. CIVIL NO. 6:23-06027

MARTIN J. O’MALLEY, Commissioner Social Security Administration1 DEFENDANT

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE Plaintiff, Brenda Carpenter, appealed the Commissioner’s denial of benefits to this Court. On December 1, 2023, U.S. District Judge Susan O. Hickey adopted the undersigned’s Report and Recommendation, remanding Plaintiff’s case to the Commissioner pursuant to sentence four of

(g). (ECF No. 19). 1. Background On December 21, 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 December 27, 2023, objecting to the claimed hourly rate (ECF No. 21), and Plaintiff replied on December 27th, conceding that the Court should apply the proper hourly rate. (ECF No. 22). 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

1 Martin J. O’Malley has been appointed to serve as Commissioner of the Social Security Administration, and is substituted as Defendant, pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure. 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 392, 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. (ECF No. 19). Defendant does not contest Plaintiff’s claim that she is the prevailing party, but objects that the 2023 hourly rate employed in Plaintiff’s Motion ($250) exceeds the approved hourly rate of $236 for legal work completed during 2023. 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.

Second, the Court notes that Defendant does not object to the itemized time requested by Plaintiff’s Motion. Turning to the Defendant’s objection concerning the hourly rate, Defendant wins the point as Plaintiff concedes in her Reply – $250 per hour has not been authorized. Plaintiff’s Motion seeks compensation for 21.75 hours of itemized legal work completed during 2023 at an hourly

2 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. rate of $250. 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 (slightly less than the proposed $236.39), and this rate will be utilized in calculating

Plaintiff’s attorney’s fee award. The Court independently has reviewed Plaintiff’s submissions, and upon review, finds all of counsel’s itemized work was reasonable and resulted in remand of Plaintiff’s case. The undersigned recommends that Plaintiff be awarded attorney’s fees in the amount of $5,133.00, representing 21.75 hours of legal work performed by her counsel during 2023 at the hourly rate of $236. The Court thus recommends that Plaintiff’s Motion for Attorney Fees (ECF No. 20) be GRANTED, and Plaintiff awarded $5,133.00 in attorney’s 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,

(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

, 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 the 3” day of January 2024.

CHRISTY“*COMSTOCK UNITED STATES MAGISTRATE JUDGE