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

TIMOTHY ALLEN CORNELL PLAINTIFF

v. CIVIL NO. 5:24-05061-TLB

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

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE Plaintiff Timothy Allen Cornell appealed the Commissioner’s denial of benefits to this Court. On August 23, 2024, U.S. District Judge Timothy L. Brooks adopted the undersigned’s Report and Recommendation, which recommended granting the Commissioner’s unopposed Motion to Remand. (ECF Nos. 13, 14). Judge Brooks remanded Plaintiff’s case to the Commissioner pursuant to sentence four of

(g). (ECF No. 15). 1. Background On September 23, 2024, Plaintiff filed a Motion seeking an award of attorney fees in the amount of $6,357.75 under

, the Equal Access to Justice Act (EAJA). (ECF No. 16). On October 7, 2024, Defendant responded, objecting only to the number of pre-complaint hours claimed by counsel, and seeking a 1.35 hour reduction. (ECF No. 19). The Motion was referred to the undersigned for Report and Recommendation. 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 0F 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. 15). 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. Plaintiff’s Motion seeks compensation for 25.95 hours of legal work during 2024 at the hourly rate of $245 and Defendant makes no objection to the rate claimed. 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,

. The Court finds the CPI-South Index authorized an hourly rate of $245 during 2024 and will employ this rate when

calculating fees. The Commissioner objects to the total time expended by counsel, pointing out Plaintiff claimed 3.35 hours of pre-complaint work between January 18 and March 31, 2024. The Commissioner seeks a reduction of 1.35 of those hours in accordance with the practices of this District. See Pelts v. Colvin,

(W.D. Ark. April 3, 2017).

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:

2024 – 298.754 x 125 divided by 152.4 (December 2023 CPI – South) = $245.04 ~ $245.00. Pursuant to the EAJA, a court must determine whether the award is reasonable.2 Blakeslee 1F v. Social Security Administration,

, *1 (E.D. Ark. April 25, 2024). The undersigned sustains the Commissioner’s objection and will award fees for only 2.0 hours of pre- complaint work by counsel, effectively reducing the overall award by 1.35 hours. As a result, the Court recommends a fee award in the amount of $6,027.00 (24.6 hours at $245 per hour), finding justification because of reasonable and necessary work performed and results achieved. The undersigned recommends that Plaintiff’s Motion for Attorney Fees (ECF No. 16) be GRANTED, and Plaintiff be awarded attorneys’ fees of $6,027.00 with these amounts 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

2

(b). See also Design & Prod., Inc. v. United States,

, 151–52 (1990) (“The key words chosen by the Congress when enacting the EAJA are ‘a court shall’ and ‘unless the court finds.’ These are clear words of direction from the Congress to the courts indicating that it is a court's responsibility to determine whether and at what level attorney's fees are appropriate in an EAJA case.... In accordance with the statutory terms, it is the court's responsibility to independently assess the appropriateness and measure of attorney's fees to be awarded in a particular case, whether an amount is offered as representing the agreement of the parties in the form of a proposed stipulation.”). reminded that objections must be both timely and specific to trigger de novo review by the District Court. RECOMMENDED this 9 day of October 2024.

CHRISTY COMSTOCK UNITED STATES MAGISTRATE JUDGE