Bohl v. Social Security Administration Commissioner

Filing 19

ORDER granting 16 Motion for Attorney Fees in favor of Kristie M. Bohl against Social Security Administration Commissioner in the amount of $5,000.50. This amount should be paid in addition to, and not out of, any past due benefits which plaintiff may be awarded in the future. Further, any EAJA award by this Court should be made payable to plaintiff and not counsel. Signed by Honorable Christy D. Comstock on September 26, 2024.(mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
KRISTIE MARIE BOHL
v.

PLAINTIFF
CIVIL NO. 2:24-CV-02019-CDC

MARTIN O’MALLEY, Commissioner
Social Security Administration

DEFENDANT
ORDER

Plaintiff appealed the Commissioner’s denial of benefits to this Court. On June 24, 2024,
the undersigned issued Judgment, reversing and remanding Plaintiff’s case to the Commissioner
pursuant to sentence four of 42 U.S.C. § 405(g). (ECF Nos. 14 & 15).
1.

Background
On September 10, 2024, Plaintiff filed a motion seeking an award of $5,000.50 in legal

fees under 28 U.S.C. § 2412, the Equal Access to Justice Act (hereinafter “EAJA”). (ECF No.
16). Defendant responded on September 17, 2024, offering no objection to the Motion. (ECF No.
18).
2.

Applicable Law
Pursuant to the EAJA, 28 U.S.C. § 2412(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, 807 F.2d 127, 128 (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

1

days of a final judgment in an action, see 28 U.S.C. § 2412(d)(1)(B), or within thirty days after the
sixty-day period for an appeal has expired. See Shalala v. Schaefer, 509 U.S. 292, 298 (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 42 U.S.C.
§ 406(b)(1). Recovery of attorney’s fees under both the EAJA and 42 U.S.C. § 406(b)(1) was
specifically allowed when Congress amended the EAJA in 1985. See Gisbrecht v. Barnhard, 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. § 406(b)(1) as follows:
Fee awards may be made under both prescriptions [EAJA and 42 U.S.C. §
406(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.”
Id. 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, 728 F.2d 978, 986 (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

2

Johnson v. Sullivan, 919 F.2d 503, 504 (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. 15). Defendant has not objected 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.
Exhibits to Plaintiff’s Motion itemize 26.50 hours of legal work – 23 hours of lawyer work
and 3.50 hours by paralegals – conducted between December 11, 2023, and September 9, 2024.
Fees were calculated by counsel using the hourly rates of $206 for counsel and $75 for paralegal
time and total $5,00.50. Attorney rates are authorized by the EAJA so long as the CPI-South Index
justifies this enhanced rate. See General Order 39; see also 28 U.S.C. § 2412(d)(2)(A) and Johnson,
919 F.2d at 504. Here, the Court finds the CPI-South Index authorized an hourly rate for legal
work of $236 for 2023 and $245 for 2024. However, where counsel seeks a rate lower than the
authorized rate, the Court uses the lower rate to calculate the fee award. The paralegal rate of $75
per hour is the rate customarily approved by the Western District and will be applied here to
paralegal work.

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:
1

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.
3

Pursuant to the EAJA, a court must determine whether the award is reasonable. 2 Blakeslee
1F

v. Social Security Administration, 2024 WL 2012496, *1 (E.D. Ark. April 25, 2024). Here, after
examination of the materials before it, the Court finds a fee award of $5,000.50 is reasonable for
the results obtained and within the range of fees customarily awarded in this District following
remand of a matter to the Commissioner.
The Court GRANTS Plaintiff’s Motion for Attorneys’ Fees (ECF No. 16) and awards
Plaintiff fees in the sum of $5,000.50, representing 23 hours of legal work during 2023-2024 at
the hourly rate of $206 and 3.5 hours of paralegal work at the hourly rate of $75. 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, 130 S.Ct. 2521 (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 42 U.S.C. § 406, to prevent a double recovery by counsel for Plaintiff.
IT IS SO ORDERED this 26th day of September 2024.

_________________________________________

CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE

28 U.S.C. § 2412(b). See also Design & Prod., Inc. v. United States, 21 Cl. Ct. 145, 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.”).

2

4