Wewer v. Social Security Administration Commissioner

Filing 17

MEMORANDUM OPINION AND ORDER granting 13 Motion for Attorney Fees. Plaintiff is awarded Attorney Fees in the amount of $4,322.20 pursuant to the EAJA, 28 U.S.C. § 2412. Signed by Honorable Mark E. Ford on June 8, 2016. (hnc)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION

MARY LUCILLE WEWER
v.

PLAINTIFF
CIVIL NO. 2:14-cv-2215-MEF

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION AND ORDER
Pending now before this Court is Plaintiff’s Motion for Attorney Fees Under the Equal
Access to Justice Act (“EAJA”). (ECF Nos. 13, 14) The Defendant filed a response voicing no
substantive objections. (ECF No. 15) The matter is now ripe for resolution.
I.

Background:
On April 19, 2016, Plaintiff filed a motion for attorney’s fees and costs under 28 U.S.C. §

2412, the Equal Access to Justice Act (hereinafter “EAJA”), requesting $4,322.20 representing a
total of 6.85 attorney hours in 2014 at an hourly rate of $186.25, 16.30 attorney hours for work
performed in 2015 and 2016 at an hourly rate of $187.00, and $23.29 in postage expense. (ECF
No. 13) On May 3, 2016, the Defendant filed a response objecting only to counsel’s request that
the EAJA fee be made payable to her. (ECF No. 15)
II.

Discussion:
It is the opinion of the undersigned that the Plaintiff is entitled to a fee award in this case,

as she is the prevailing party, the government’s decision to deny benefits was not “substantially
justified”, the hourly rate requested for attorney hours does not exceed the CPI for the years in
question, and the time asserted to have been spent in the representation of the Plaintiff before the
district court is reasonable. See Jackson v. Bowen, 807 F.2d 127, 128 (8th Cir. 1986) (burden is on

the Commissioner to show substantial justification for the government’s denial of benefits);
Johnson v. Sullivan, 919 F.2d 503 (8th Cir. 1990) (the hourly rate may be increased when there is
“uncontested proof of an increase in the cost of living sufficient to justify hourly attorney’s fees
of more than $75.00 an hour); and Allen v. Heckler, 588 F.Supp. 1247 (W.D.N.Y. 1984) (in
determining reasonableness, court looks at time and labor required; the difficulty of questions
involved; the skill required to handle the problems presented; the attorney’s experience, ability,
and reputation; the benefits resulting to the client from the services; the customary fee for similar
services; the contingency or certainty of compensation; the results obtained; and, the amount
involved). Accordingly, Plaintiff is entitled to an attorney’s fee award under EAJA in the amount
of $4,322.20.
Pursuant to Astrue v. Ratliff, 130 S.Ct. 2521, 2528 (2010), the EAJA fee award should be
made payable to Plaintiff. However, as a matter of practice, an EAJA fee made payable to Plaintiff
may properly be mailed to Plaintiff’s counsel.
The parties are reminded that, in order to prevent double recovery by counsel for the
Plaintiff, the award herein under the EAJA will be taken into account at such time as a reasonable
fee is determined pursuant to 42 U.S.C. § 406.
III.

Conclusion:
Based upon the foregoing, Plaintiff is awarded the sum of $4,322.20 for attorney’s fees

pursuant to the EAJA, 28 U.S.C. § 2412.
IT IS SO ORDERED on this the 8th day of June, 2016.
/s/ MarK E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE

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