Goldstein v. Berryhill

Filing 30

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. 27] IT IS FURTHER ORDERED that defendant Commissioner of Soci al Security shall pay attorney's fees to plaintiff under the EAJA in the amount of Five Thousand Nine Hundred Dollars and Sixty-Two Cents ($5,900.62), in accordance with the terms of this Memorandum and Order. Signed by District Judge Charles A. Shaw on 1/7/2019. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JONI LYNN GOLDSTEIN,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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No. 4:17-CV-405 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 $5,900.62, which amount is based on multiplying 26.6 hours of
attorney time by a rate of $194.76 per hour, and 7.2 hours of paralegal work at $100 per hour.
Defendant filed a response stating there is no objection to the request for attorney’s fees in the
amount of $5,900.62, which should be made payable directly to plaintiff pursuant to Astrue v.
Ratliff, 560 U.S. 586 (2010), and may be subject to offset to satisfy any pre-existing debt that
plaintiff owes to the United States. Plaintiff signed an Affirmation of Waiver and Direct Payment
of EAJA Fees, assigning any fee under the EAJA to her attorney. (Doc. 28-5) Defendant states that
following this Court’s order awarding an EAJA fee payable to plaintiff, defendant will verify
whether plaintiff owes a debt to the United States that is subject to offset. If there is no such debt
owed by plaintiff, the EAJA fee will be made payable to plaintiff’s attorney based on plaintiff’s
assignment to her attorney.
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 Memorandum and Order and Judgment
of Remand dated September 25, 2018, 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
attached summaries of the Consumer Price Index as exhibits and presented uncontested evidence
of an increase in the cost of living. A cost of living increase is appropriate as requested.
Because plaintiff prevailed and is not otherwise precluded from receiving attorney’s fees,
the Court finds that she is entitled to attorney’s fees in the amount of $5,900.62.
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. 27]
IT IS FURTHER ORDERED that defendant Commissioner of Social Security shall pay
attorney’s fees to plaintiff under the EAJA in the amount of Five Thousand Nine Hundred Dollars
and Sixty-Two Cents ($5,900.62), in accordance with the terms of this Memorandum and Order.

__________________________________
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
Dated this 7th day of January, 2019.

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