Blecha v. Colvin

Filing 32

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's application for attorney's fees and costs under the Equal Access to Justice Act is GRANTED. [Doc. 30 ] IT IS FURTHER ORDERED that defendant Commissioner o f Social Security shall pay attorney's fees under the EAJA in the amount of Six Thousand Three Hundred Eighty Dollars and Eighty Cents ($6,380.80), and that the award shall be made payable to plaintiff. Signed by District Judge Charles A. Shaw on 8/31/17. (JWD)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOHN CHRISTOPHER BLECHA,
Plaintiff,
v.
NANCY BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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No. 4:15-CV-1784 CAS

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s Application for Award of Attorney’s Fees
pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(B). Plaintiff seeks
attorney’s fees in the amount of $6,380.80, which amount is based on multiplying 32.6 hours of
attorney time by a rate of $195.73 per hour. Defendant filed a response which states that it does not
object to plaintiff’s request for attorney fees under the EAJA in the amount of $6,380.80, which
should be made payable directly to plaintiff pursuant to Astrue v. Ratliff, 130 S. Ct. 2521, 2552-53
(2010).
The Court has reviewed plaintiff’s application for an award of fees and expenses under the
EAJA, and concludes the statutory requirements are met. By Order and Judgment of Remand dated
March 8, 2017, this Court remanded this case to defendant Commissioner for further proceedings
pursuant to sentence four of 42 U.S.C. § 405(g). A claimant seeking judicial review of a final
decision denying Social Security disability benefits may recover attorney’s fees if he or she receives
a “sentence four” remand. See Shalala v. Schaefer, 509 U.S. 292, 295-96 (1993).
Attorney’s fees may not be awarded in excess of $125.00 per hour – the maximum statutory
rate under § 2412(d)(2)(A) – unless the Court finds that an increase in the cost of living or a special
factor such as the limited availability of qualified attorneys justifies a higher fee. 28 U.S.C.
§ 2412(d)(2)(A). The decision to increase the hourly rate is not automatic and remains at the
discretion of the district court. McNulty v. Sullivan, 886 F.2d 1074 (8th Cir. 1989). The hourly rate

should be increased, however, where there is “uncontested proof of an increase in the cost of living
sufficient to justify hourly attorney’s fees of more than [$125] per hour,” such as the Consumer Price
Index. Johnson v. Sullivan, 919 F.2d 503, 504, 505 (8th Cir. 1990). In this case, counsel has
referenced the United States Department of Labor, Bureau of Labor Statistics, Consumer Price Index
available at http://www.bls.gov/news.release/cpi/ and presented uncontested evidence of an increase
in the cost of living. The Court agrees with counsel that a cost of living increase is appropriate as
requested.
Additionally, counsel has attached affidavits of attorneys Martin Carrow and Michael Ferry.
Both attorneys represent social security claimants in similar matters. Mr. Carrow states that he
charges a reasonable market rate of $250.00 per hour for his work. He states that his hourly rate is
common practice for this region. Mr. Ferry states that as the Executive Director of Gateway Legal
Services, Inc., he represents social security claimants in both Missouri and Southern Illinois. He
states that he charges a reasonable market rate of $325.00 per hour or more for his work. Plaintiff’s
attorney has produced sufficient evidence that the hourly rate she requests, $195.73, is in line with
or lower than those prevailing in this legal community for similar services by lawyers of comparable
skill and expertise. The Court finds an hourly fee of $195.73 to be a reasonable fee under 28 U.S.C.
§ 2412(d)(2)(A).
Because plaintiff prevailed and is not otherwise precluded from receiving attorney’s fees,
the Court finds that he is entitled to attorney’s fees in the amount of $6,380.80.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s application for attorney’s fees and costs under
the Equal Access to Justice Act is GRANTED. [Doc. 30]

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IT IS FURTHER ORDERED that defendant Commissioner of Social Security shall pay
attorney’s fees under the EAJA in the amount of Six Thousand Three Hundred Eighty Dollars and
Eighty Cents ($6,380.80), and that the award shall be made payable to plaintiff.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
Dated this 31st day of August, 2017.

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