Patrick v. Kijakazi

Filing 30

ORDER GRANTING 28 Motion for Attorney Fees. IT IS HEREBY ORDERED that attorneys fees and expenses in the amount of Nine Thousand One Two Hundred Forty Dollars ($9,240.00) pursuant to the Equal Access to JusticeAct, 28 U.S.C. § 2412(d) are awarded to Plaintiff. Astrue v. Ratliff, 130 S.Ct. 2521 (2010). Signed by Judge Xavier Rodriguez. (mgr)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
AMY DEE PATRICK,
Plaintiff
-vsKILOLO KIJAKAZI,
Defendant

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SA-22-CV-00716-XR

ORDER GRANTING MOTION FOR ATTORNEY’S FEES
On this date, the Court considered Plaintiff’s Motion for Attorney’s Fees filed on
November 7, 2023. ECF No. 28. Because Plaintiff, as a prevailing party, is entitled to an award of
fees incurred in prosecuting this action, and Defendant does not oppose an award of attorney’s
fees, see ECF No. 29, the Court GRANTS the motion.
Plaintiff Amy Dee Patrick initiated this action on July 7, 2022, appealing the administrative
denial by the Social Security Administration (“SSA”) of her application for Social Security
Disability Insurance benefits (“DIB”) and Supplemental Security Income (“SSI”) under Title II
and Title XVI of the Social Security Act respectively, pursuant to 42 U.S.C. §§ 405(g). See ECF
Nos. 1, 5.
On September 21, 2023, the Court adopted the Magistrate Judge’s recommendation to
vacate the Commissioner’s final administrative decision and remand the case for further
administrative proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). ECF No. 25.
Pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, Plaintiff then timely
requested that Defendant reimburse the attorney’s fees she incurred in achieving this result. ECF
No. 28. Defendant does not oppose the propriety of such an award or the amount claimed for
attorney’s fees. ECF No. 29.

Plaintiff has requested fees in the amount of $9,240.00. In support of the motion, Plaintiff’s
counsel has submitted an itemization of the hours spent representing Plaintiff in this case before
the Court. See ECF No. 28-1.
An award of attorney’s fees under 28 U.S.C. § 2412 is to be based upon the prevailing
market rate for the kind and quality of the services furnished, not in excess of $125 per hour, unless
the Court determines “that an increase in the cost of living or a special factor . . . justifies a higher
fee.” 28 U.S.C. § 2412(d)(2)(A). Plaintiff seeks attorney’s fees at an hourly rate of $220.00, based
on the Consumer Price Index from the Bureau of Labor and Statistics, and the Court finds that the
increase from $125 per hour is justified. See ECF No. 28 at 1; Bode v. United States, 919 F.2d
1044, 1053 n.8 (5th Cir.1990) (approving courts’ use of the CPI–U in making cost-of-living
adjustments). Plaintiff seeks attorney’s fees for 42 of the 48.2 attorney hours that were allegedly
expended on this appeal. Plaintiff has sufficiently demonstrated that the number of hours claimed
for compensation is reasonable and necessary in this case. Further, Defendant does not oppose the
requested amount for attorney’s fees. See ECF No. 29.
It is therefore ORDERED that Plaintiff's Motion for Attorney’s Fees (ECF No. 28) is
GRANTED.
IT IS HEREBY ORDERED that attorney’s fees and expenses in the amount of Nine
Thousand One Two Hundred Forty Dollars ($9,240.00) pursuant to the Equal Access to Justice
Act, 28 U.S.C. § 2412(d) are awarded to Plaintiff. Astrue v. Ratliff, 130 S.Ct. 2521 (2010).
This award owed is payable to the Plaintiff, not directly to Plaintiff’s counsel. Payment
will be sent via Plaintiff’s attorney at his office: David F. Chermol, Chermol & Fishman, LLC,
11450 Bustleton Avenue, Philadelphia, PA, 19116.

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Defendant’s payment of this award bars any and all claims Plaintiff may have relating to
EAJA fees and expenses in connection with this action. Defendant’s payment of this award is
without prejudice to Plaintiff’s right to seek attorney fees under section 206(b) of the Social
Security Act, 42 U.S.C. § 406(b), subject to the offset provisions of the EAJA.
It is so ORDERED.
SIGNED this 13th day of November, 2023.

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XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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