United States District Court, W.D. Arkansas, Texarkana Division
ELIZABETH L. HATOS, Plaintiff,
CAROLYN COLVIN, Commissioner, Social Security Administration, Defendant.
Elizabeth L. Hatos, Plaintiff, represented by David F.
Chermol, Chermol and Fishman LLC.
Commissioner Social Security Administration, Defendant,
represented by Kendall M. Rees, SSA Office of the General
Counsel Region VI.
REPORT AND RECOMMENDATION OF THE UNITED STATES
A. BRYANT, Magistrate Judge.
now before this Court is Plaintiff's Request for Attorney
Fees Under the Equal Access to Justice Act
("EAJA"). ECF No. 18. Defendant has responded
to this Motion. ECF No. 19. Pursuant to the provisions of 28
U.S.C. Â§ 636(b)(1) and (3) (2009), the Honorable Susan O.
Hickey, referred this Motion to this Court for the purpose of
making a report and recommendation. In accordance with that
referral, this Court enters the following report and
Hatos ("Plaintiff") appealed to this Court from the
Secretary of the Social Security Administration's
("SSA") denial of her request for disability
benefits on behalf of R.D.G. ECF No. 1. On May 18, 2016,
Plaintiff's case was remanded pursuant to sentence four
of 42 U.S.C. Â§ 405(g). ECF No. 18.
1, 2016, Plaintiff filed the present Motion requesting an
award of attorney's fees under the EAJA. ECF No 18. With
this Motion, Plaintiff requests an award of attorney's
fees and costs of $6, 110.20. Id. This amount
represents 30.70 attorney hours at an hourly rate of $186.00
for work performed and $400.00 in costs. Id.
Defendant responded to this Motion on June 14, 2016. ECF No.
to the EAJA, 28 U.S.C. Â§ 2412(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, 807 F.2d
127, 128 (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 28 U.S.C. Â§ 2412(d)(1)(B), or within thirty days
after the sixty day time for appeal has expired. See
Shalala v. Schaefer, 509 U.S. 292, 298 (1993).
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 42 U.S.C. Â§ 406(b)(1). Recovery of
attorney's fees under both the EAJA and 42 U.S.C. Â§
406(b)(1) was specifically allowed when Congress amended the
EAJA in 1985. See Gisbrecht v. Barnhart,
535 U.S. 789, 796 (2002) (citing Pub. L. No. 99-80, 99 Stat.
186 (1985)). The United States Supreme Court stated that
Congress harmonized an award of attorney's fees under the
EAJA and under 42 U.S.C. Â§ 406(b)(1) as follows:
Fee awards may be made under both prescriptions [EAJA and 42
U.S.C. Â§ 406(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."
Id. 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, 728
F.2d 978, 986 (8th Cir. 1984).
statutory ceiling for an EAJA fee award is $125.00 per hour.
See 28 U.S.C. Â§ 2412(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." 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