RODRIGUEZ-CLAUDIO

v.

COMMISSIONER OF SOCIAL SECURITY

This cause comes before the Court on Plaintiff’s Motion for an Award of Attorney’s Fees Under the Equal Access to Justice Act, 28 U.S.C. § 2412 (the “Motion”), filed October 11, 2022. (Doc. 23.) Therein, Plaintiff seeks an award of attorney’s fees amounting to $6,899.94 pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (Id. at 8.) Plaintiff does not seek expenses or costs. (Id.) The Commissioner has not objected to the requested relief. (Id. at 4.) Upon consideration, the Motion is due to be granted in part and denied in part.

I. BACKGROUND

Plaintiff instituted this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security (“the Commissioner”), who denied Plaintiff Social Security benefits. (Doc. 1.) Persuaded by the Plaintiff’s argument in the Joint Memorandum (Doc. 19), the Court reversed the final decision and remanded the case to the Commissioner for further proceedings. (Docs. 20, 21.) Thereafter, Plaintiff filed the Motion, requesting $6,899.94 in attorney’s fees. (Doc. 23.) The Motion includes a schedule of the attorneys’ billable hours to support the application. (Id. at 7.) Plaintiff also requests the EAJA fees be made payable to her counsel, so long as the United States Department of Treasury determines that Plaintiff does not owe a federal debt. (Id. at 4.)

II. DISCUSSION

A. Eligibility for an Award of Fees

In ruling on a request for fees pursuant to the EAJA, a court must determine whether: (1) the requesting party is eligible for fees; and (2) the amount of requested fees is reasonable. Comm’r, I.N.S. v. Jean, 496 U.S. 154, 160–61 (1990). A claimant is eligible for an attorney’s fee award where: (1) the claimant is the prevailing party in a non-tort suit involving the United States; (2) the government’s position was not substantially justified; (3) the claimant filed a timely application for attorney’s fees; (4) the claimant had a net worth of less than $2 million when the complaint was filed; and (5) there are no special circumstances that would make the award of fees unjust. 28 U.S.C. § 2412(d). The fee award must also be reasonable. Schoenfeld v. Berryhill, No. 8:17-cv-407-T-AAS, 2018 WL 5634000, at *1 (M.D. Fla. Oct. 31, 2018) (citing 28 U.S.C. § 2412(d)(2)(A)). A social security plaintiff is deemed to have prevailed against the United States if the court orders a “sentence four”¹ remand. Shalala v. Schaefer, 509 U.S. 292, 300– 02 (1993). The application for attorney’s fees is timely if it is made within thirty days of the final judgment in the action; however, premature requests are also deemed timely. 28 U.S.C. § 2412(d)(1)(B); Myers v. Sullivan, 916 F. 2d 659, 679 n.20 (11th Cir. 1990). The deadline begins to “run[] from the end of the period for appeal,” which is sixty days for the Commissioner. Shalala, 509 U.S. at 303; Fed. R. App. P. 4(a)(1)(B)(iii) (stating that in a civil case where one of the parties is a United States officer or employee sued in an official capacity, any party may file a notice of appeal within 60 days after entry of the judgment). The request must contain an allegation that the Commissioner’s position was not substantially justified. Jean, 496 U.S. at 160. As with any petition for fees, the Court must always apply its own expertise and judgment, regardless of whether the requested fee amount is contested. Winkler v. Cach, LLC, No. 8:11-cv-2358-T-24AEP, 2012 WL 2568135, at *1 (M.D. Fla. July², 2012). An EAJA award is to the party and therefore subject to an offset to satisfy any preexisting debt that the party owes to the United States. Astrue v. Ratliff, 560 U.S. 586, 592–93 (2010).

Plaintiff has satisfied the five requirements that determine a claimant’s eligibility for attorney’s fees pursuant to the EAJA. Plaintiff is deemed to have prevailed since

B. Reasonableness of the Fee

EAJA fees are determined by using the “lodestar” method—the number of hours reasonably expended multiplied by a reasonable hourly rate. Jean v. Nelson, 863 F. 2d 759, 773 (11th Cir. 1988), aff'd 496 U.S. 154 (1990). The EAJA requires that the amount of attorney’s fees be “reasonable,” which is determined by the “prevailing market rates for the kind and quality of the services furnished.” 28 U.S.C. § 2412(d)(2)(A). However, “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 special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.” Id. The party requesting fees has the burden of demonstrating the reasonableness of the fee and the number of hours expended. Norman v. Housing Auth. of Montgomery, 836 F. 2d 1292, 1299 (11th Cir. 1988); Watford v. Heckler, 765 F. 2d 1562, 1568 (11th Cir. 1985). The requesting party may also include the number of hours it took to prepare the EAJA request in its request for fees. Jean, 863 F. 2d at 779–

80.

Courts use a two-step analysis when determining the appropriate hourly rate under the EAJA. Meyer v. Sullivan, 958 F. 2d 1029, 1034 (11th Cir. 1992). First, a court determines the market rate for similar services provided by lawyers of “comparable skill, experience, and reputation” in the area. Id. Second, the court evaluates the cost of living increase, specifically at the time the work was performed and not at the time when the motion was filed. Id.; see also Bey v. Comm’r of Soc. Sec., No. 3:18-CV-319-J- PDB, 2019 WL 4221716, at *2 (M.D. Fla. Sept. 5, 2019) (citing Masonry Masters, Inc. v. Nelson, 105 F. 3d 708, 711–12 (D.C. Cir. 1997)). The court is considered an “expert” on reasonable rates and may use its independent judgment in evaluating whether the hourly rate is reasonable. Norman, 836 F. 2d at 1304 (citing Campbell v. Green, 112 F. 2d 143, 144 (5th Cir. 1940)); see also Kirkendall v. Comm’r of Soc. Sec., No. 3:17-CV-880-J- PDB, 2019 WL 913282, at *2 (M.D. Fla. Feb. 25, 2019). Courts in this District routinely calculate cost of living adjustments under the EAJA using the United States Department of Labor’s Consumer Price Index (“CPI”). See Wilborn v. Comm’r of Soc. Sec., No. 8:11-cv-2249-T-30MAP, 2013 WL 1760259, *1 (M.D. Fla. Apr. 24, 2013); Rodgers v. Astrue, 657 F. Supp. 2d 1275, 1277 (M.D. Fla. July 22, 2009). Plaintiff expended 21.57 hours in 2021 and 6.3 hours in 2022, for a total of 27.87 hours in EAJA-related representation in this case. (Doc. 23 at 7.)² After reviewing a

IN PART AND DENIED IN PART.

2. Plaintiff is entitled to an award of attorney fees in the amount of $6,028.13 DONE and ORDERED in Orlando, Florida on October 24, 2022.

gM KIDD

UNITED STATES MAGISTRATE JUDGE

The Court calculated the CPI for 2022 by taking an average of the CPI from January 2022 to August 2022.