McCool v. Social Security Administration Commissioner
MEMORANDUM OPINION AND ORDER granting 17 Motion for Attorney Fees. Plaintiff is awarded the amount of $5,925.85 for attorneys feespursuant to the EAJA, 28 U.S.C. § 2412. Signed by Honorable Mark E. Ford on February 23, 2017. (hnc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
JACOB A. MCCOOL
CIVIL NO. 2:15-cv-2210-MEF
NANCY A. BERRYHILL, Acting
Commissioner, Social Security Administration1
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. 17, 18. The parties have consented to the jurisdiction
of a Magistrate Judge to conduct any and all proceedings in this case, and pursuant to said
authority, the Court issues this Order. ECF No. 7.
On December 14, 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 $5,925.85
representing a total of 4.65 attorney hours for work performed in 2015 at an hourly rate of $187.00,
25.10 attorney hours for work performed in 2016 at an hourly rate of $188.00 and 4.50 paralegal
hours at an hourly rate of $75.00. ECF No. 18-3. Despite having ample time to do so, the
Government has not filed a response.
It is the opinion of the undersigned that the Plaintiff is entitled to a fee award in this case,
as he is the prevailing party, the government’s decision to deny benefits was not “substantially
justified”, the hourly rate requested for both attorney and paralegal hours does not exceed the CPI
for either year in question, and the time asserted to have been spent in the representation of the
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as
the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of
section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
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 $5,925.85.
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.
Based upon the foregoing, Plaintiff is awarded the sum of $5,925.85 for attorney’s fees
pursuant to the EAJA, 28 U.S.C. § 2412.
Dated this 23rd day of February, 2017.
/s/ Mark E. Ford
HONORABLE MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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