McCoy v. Commissioner Social Security Administration

Filing 31

Findings & Recommendation: Plaintiff's Stipulated Application for Fees Pursuant to EAJA 28 should be granted. Plaintiff should be awarded $5,486.10 in attorney's fees under 28 U.S.C. § 2412. Signed on 12/15/14 by Magistrate Judge Dennis J. Hubel. (gm)

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UNITED STATES DISTRICT COURT

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DISTRICT OF OREGON

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PORTLAND DIVISION

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KELLY L. MCCOY,
Plaintiff,

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FINDINGS AND
RECOMMENDATION

v.

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No. 6:13-cv-01616-HU

CAROLYN W. COLVIN, Commissioner
of Social Security,

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Defendant.
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HUBEL, Magistrate Judge:

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This social security case was originally filed by Plaintiff

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Kelly McCoy (“Plaintiff”) on September 13, 2013, challenging the

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denial of her claim for supplemental security income benefits under

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Title XVI of the Social Security Act.

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filed a twenty-page opening brief on July 3, 2014, the Commissioner

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of the Social Security Administration (“SSA” or “Commissioner”)

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stipulated that the above-captioned case should be reversed and

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remanded for a new hearing and development of the record.

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Michael Simon entered an order to that effect on September 26,

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2014.

After Plaintiff’s counsel

Judge

Now before the Court is Plaintiff’s stipulated application

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(Docket No. 28) for attorney’s fees pursuant to the Equal Access to

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Justice Act (“EAJA”), 27 U.S.C. § 2412.

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The

EAJA

requires

an

award

of

attorney’s

fees

to

the

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prevailing plaintiff in a social security case, “unless the court

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finds that the position of the United States was substantially

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justified or . . . special circumstances make an award unjust.” 28

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U.S.C. § 2412(d).

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While

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the EAJA creates a presumption that fees will be awarded
to a prevailing party, Congress did not intend fee
shifting to be mandatory. The decision to deny EAJA
attorney’s fees is within the discretion of the court. A
social security claimant is the ‘prevailing party’
following a sentence-four remand pursuant to 42 U.S.C. §
405(g) either for further administrative proceedings or
for the payment of benefits. Fee awards under the EAJA
are paid to the litigant, and not the litigant’s
attorney, unless the litigant has assigned his or her
rights to counsel to receive the fee award.

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Frazier v. Colvin, No. 3:13–cv–00673–SI, 2014 WL 1571890, at *1 (D.

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Or. Apr. 17, 2014) (internal citations omitted).

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Plaintiff seeks an award of attorney’s fees in the amount of

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$5,486.10 based on 28.95 hours of work (e.g., 4.75 hours multiplied

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by a 2013 applicable statutory maximum hourly rate of $187.02, plus

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24.20 hours multiplied by a 2014 applicable statutory maximum

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hourly rate of $189.99).

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reasonableness of the requested fees.

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Plaintiff’s motion and agrees with the parties that the EAJA

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petition is proper and the amount requested is reasonable.

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The Commissioner stipulates to the
The Court has reviewed

Accordingly, Plaintiff’s application (Docket No. 28) should be

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GRANTED.

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under 28 U.S.C. § 2412.

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check made payable to Plaintiff and mailed to Plaintiff’s attorneys

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at Harder, Wells, Baron & Manning, P.C., 474 Willamette Street,

Plaintiff should be awarded $5,486.10 in attorney’s fees
“Payment of this award shall be paid via

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Eugene, Oregon 97401. Pursuant to Astrue v. Ratliff, [560 U.S. 586

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(2010),] the award shall be made payable to Plaintiff’s attorneys

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if the Commissioner confirms that Plaintiff owes no debt to the

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government

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(Settlement & Stipulated Mot. at 1.)

through

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the

federal

treasury

offset

program.”

SCHEDULING ORDER
The Findings and Recommendation will be referred to a district

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judge.

Objections, if any, are due January 2, 2015.

If no

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objections are filed, then the Findings and Recommendation will go

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under advisement on that date.

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response is due January 19, 2015.

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filed, whichever date is earlier, the Findings and Recommendation

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will go under advisement.

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Dated this

15th

If objections are filed, then a
When the response is due or

day of December, 2014.
/s/ Dennis J. Hubel
_________________________________
DENNIS J. HUBEL
United States Magistrate Judge

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