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

RICKY LEE MCLEROY PLAINTIFF

v. CIVIL NO. 5:23-CV-05190-CDC

MARTIN O’MALLEY, Commissioner Social Security Administration DEFENDANT

ORDER

Plaintiff appealed the Commissioner’s denial of benefits to this Court. On May 9, 2024, the undersigned granted the Commissioner’s Unopposed Motion to Remand (ECF No. 17) and issued Judgment, reversing and remanding Plaintiff’s case to the Commissioner pursuant to sentence four of

(g). (ECF Nos. 19 & 20). 1. Background On August 1, 2024, Plaintiff filed a motion seeking an award of $2,257.80 in legal fees under

, the Equal Access to Justice Act (hereinafter “EAJA”). (ECF No. 21). Defendant responded on August 9, 2024, noting its lack of objections. (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 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 39,1 which 0F 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. 20). Defendant does not object to Plaintiff’s prevailing party status or substantial justification. The Court finds the Government’s decision to deny benefits was not “substantially justified” and thus, Plaintiff is the prevailing party. Plaintiff seeks compensation for 2.30 hours of legal work during 2023 at the hourly rate of $236 and 7.0 hours of legal work during 2024 at the rate of $245. Attorney 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 for attorney legal work conducted in 2023 and the rate of $245 for 2024 and these rates will be employed in calculating Plaintiff’s fee award.

As noted, Defendant has no objection to the hours claimed by Plaintiff. The Court has examined all of Plaintiff’s supporting documentation and finds that the itemized work completed by Plaintiff’s legal team during 2023-2024 was reasonable and necessary, and resulted in remand of Plaintiff’s matter to the Commissioner.

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. 2024 – 298.754 x 125 divided by 152.4 (December 2023 CPI – South) = $245.04 ~ $245.00. The Court GRANTS Plaintiff's Motion for Attorneys’ Fees (ECF No. 21) and awards Plaintiff fees in the total sum of $2,257.80, representing 2.30 hours of legal work during 2023 at the hourly rate of $236, and 7.0 hours of legal work at the approved hourly rate of $245. Plaintiff's award of fees 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 but may be mailed 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. IT IS SO ORDERED this 13" day of August 2024.

( Ansty Comatack CHRISTY @OMSTOCK UNITED STATES MAGISTRATE JUDGE