Harris v. Commissioner of Social Security
DECISION AND ORDER re 20 Motion for Attorney Fees. Signed by Hon. Jeremiah J. McCarthy on 1/7/2021. (JD)-CLERK TO FOLLOW UP-
Case 1:19-cv-00367-JJM Document 23 Filed 01/07/21 Page 1 of 4
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ROY H., 1
DECISION AND ORDER
COMMISSIONER OF SOCIAL
Plaintiff commenced this action on March 19, 2019, arguing that the
Commissioner’s denial of his claim for Social Security Disability Benefits and Supplemental
Security Income Benefits was not supported by substantial evidence and was contrary to law and
regulation. Complaint . 3 On September 21, 2020, I granted plaintiff’s motion for judgment on
the pleadings and remanded the case to the Commissioner for further proceedings consistent with
my Decision and Order . Following the entry of a Judgment , plaintiff filed a motion for
an award of attorney’s fees in the amount of $7,478.44 under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. §2412 . The parties then filed a Stipulation and Order for Attorney
Fees  agreeing that plaintiff should receive attorney’s fees in the amount of $6,464.44.
In accordance with the guidance from the Committee on Court Administration and Case
Management of the Judicial Conference of the United States, which was adopted by the Western District
of New York on November 18, 2020 in order to better protect personal and medical information of nongovernmental parties, this Decision and Order will identify the plaintiff by first name and last initial.
Andrew M. Saul was sworn in as Commissioner of Social Security on June 17, 2019, and is
automatically substituted as the defendant in this action. See Fed. R. Civ. P. 25(d).
Bracketed references are to CM/ECF docket entries.
Case 1:19-cv-00367-JJM Document 23 Filed 01/07/21 Page 2 of 4
28 U.S.C. §2412(b) authorizes an award of “reasonable fees and expenses of
attorneys . . . to the prevailing party in any civil action brought by or against the United States or
any agency or any official of the United States acting in his or her official capacity.” By
obtaining a remand under the circumstances present in this case, plaintiff is the “prevailing
party” for purposes of the EAJA. Shalala v. Schaefer, 509 U.S. 292, 300-02 (1993).
The fact that the parties have stipulated to an amount does not relieve this court of
the obligation to determine whether that amount is reasonable. See Pribek v. Secretary,
Department of Health & Human Services, 717 F. Supp. 73, 75 (W.D.N.Y. 1989) (“the
determination of a reasonable fee under the EAJA is for the court rather than the parties by way
of stipulation”); Lockwood v. Colvin, 2016 WL 6902341, *1 (D. Conn. 2016) (“[a]lthough the
parties have reached an agreement as to the appropriate award of fees in this matter, the Court is
obligated to review the fee application and determine whether the proposed fee award is
A fee award is appropriate “unless the court finds that the position of the United
States was substantially justified or that special circumstances make an award unjust”. 28 U.S.C.
§2412(d)(1)(A). “The burden is on the Government to show that its position was substantially
justified.” Eames v. Bowen, 864 F.2d 251, 252 (2d Cir. 1988). The government has not
attempted to satisfy that burden, nor do I find any “special circumstances” which would make an
28 U.S.C. §2412(d)(2)(A) states that “attorney fees shall not be awarded in
excess of $125 per hour unless the court determines that an increase in the cost of living or a
Case 1:19-cv-00367-JJM Document 23 Filed 01/07/21 Page 3 of 4
special factor, such as the limited availability of qualified attorneys for the proceedings involved,
justifies a higher fee”. The hourly rate may be adjusted to account for inflation as determined by
the Consumer Price Index (“CPI”). See Isaacs v. Astrue, 2009 WL 1748706, *3 (W.D.N.Y.
2009) (“[t]he current statutory cap of $125 per hour took effect in 1996 . . . and the Court may
revise it upward to reflect inflation as determined by the [CPI]”). The stipulation provides
plaintiff’s counsel fees at an effective hourly rate of $177.59. 4 This adjustment is appropriate.
Moreover, I find the number of hours devoted to this case, as detailed in counsel’s Declaration
([20-2] ¶3) to be reasonable. Therefore, I find no reason to second guess the fee amount to which
the parties have stipulated.
Under his Fee Agreement with the Law Offices of Kenneth R. Hiller, PLLC (), plaintiff assigned his right to any fee award to his counsel. Pursuant to the Stipulation,
“payment of fees will be made directly to Plaintiff’s attorney, Justin Jones, pursuant to Plaintiff’s
written transfer of his rights to EAJA fees to his attorney, provided that Plaintiff owes no debt to
the Federal Government that is subject to offset under the U.S. Treasury Offset Program”.
Stipulation . “EAJA fees are payable to litigants and are thus subject to offset where a
litigant has outstanding federal debts.” Astrue v. Ratliff, 560 U.S. 586, 594 (2010). While fee
awards under the EAJA are payable to the plaintiff, the plaintiff has the right to assign the EAJA
fee award to his or her lawyer, and where the Commissioner does not oppose the assignment, it
can be honored under the Anti-Assignment Act. See Kerr for Kerr v. Commissioner of Social
Security, 874 F.3d 926, 937 (6th Cir. 2017) (“[u]nless the government waives application of the
[Anti-Assignment Act] in EAJA cases, fee awards must be paid to the prevailing party, not to the
See CPI adjustment calculation. [20-1], p. 4. The effective hourly rate was calculated by dividing the
stipulated fee ($6,464.44) by the total number of hours (36.4) documented in plaintiff’s fee application.
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The Stipulation  is approved as follows: the court awards plaintiff attorney’s
fees in the amount of $6,464.44 payable to plaintiff’s counsel, unless the government declines to
waive application of the Anti-Assignment Act, in which case the award shall be payable to
plaintiff, but delivered to plaintiff’s counsel.
Dated: January 7, 2021
/s/ Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge
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