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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

LISA MICHELLE BALLENGER

vs.

COMMISSIONER, SOCIAL 

SECURITY ADMINISTRATION

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§ CASE NO. 6:23cv441-JCB-KNM

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REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Plaintiff Lisa Michelle Ballenger initiated this lawsuit by filing a complaint seeking judicial 

review of the Commissioner’s decision denying an application for Social Security benefits. Before 

the Court is Plaintiff’s Unopposed Application for Attorney Fees Under the Equal Access to 

Justice Act (ECF 16). Plaintiff states that the motion is unopposed. The motion is referred in 

accordance with 28 U.S.C. § 636. For the reasons below, the motion should be GRANTED.

Background

The Court entered an Order and Final Judgment on April 1, 2024 reversing the 

Commissioner’s final administrative decision and remanding the matter to the Commissioner for 

further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Plaintiff then 

filed the present motion seeking an EAJA award of $7,102.50 in fees and $402.00 in costs. The 

motion states that the Commissioner does not oppose the motion, including the amount requested.

Discussion

The “dual purpose” of the EAJA is “to ensure adequate representation for those who need 

it and to minimize the cost of this representation to taxpayers.” Baker v. Bowen, 839 F.2d 1075 

(5th Cir. 1988), reh’g denied, 848 F.2d 66 (5th Cir. 1988). Eligibility for a fee award under the 

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EAJA requires, at a minimum, that the claimant be a “prevailing party,” that the Commissioner’s 

position was not “substantially justified,” that no “special circumstances make an award unjust,” 

and that any fee application be submitted to the court within 30 days of final judgment and be 

supported by an itemized statement. Commissioner INS v. Jean, 496 U.S. 154, 110 S.Ct. 2316, 

2319, 110 L.Ed.2d 134 (1990); 28 U.S.C. § 2412(d)(1). A “final judgment” is a judgment that is 

final and not appealable. 28 U.S.C. § 2412(d)(2)(G). The Court previously granted Plaintiff’s 

requested extension of time to file the motion for fees (ECF 24). With regard to the amount of 

fees, 28 U.S.C. § 2412(d)(2)(A) states:

(A) “fees and other expenses” includes the reasonable expenses of expert witnesses, 

the reasonable cost of any study, analysis, engineering report, test, or project which 

is found by the court to be necessary for the preparation of the party’s case, and 

reasonable attorney fees (The amount of fees awarded under this subsection shall 

be based upon prevailing market rates for the kind and quality of services furnished, 

except that (i) no expert witness shall be compensated at a rate in excess of the 

highest rate of compensation for expert witnesses paid by the United States; and 

(ii) 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.).

A remand accomplished pursuant to the fourth sentence of 42 U.S.C. § 405(g) renders the 

claimant a prevailing party regardless of whether the claimant is successful in obtaining benefits 

on remand. Shalala v. Schaefer, 509 U.S. 292, 300-01, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993). 

The Commissioner has the burden of proving that his position was “substantially justified” and he 

has not done so here. Herron v. Bowen, 788 F.2d 1127, 1130 (5th Cir. 1986) (per curiam); see also 

Davidson v. Veneman, 317 F.3d 503, 506 (5th Cir. 2003). In addition, the Commissioner has not 

alleged or shown special circumstances that would render an award unjust. 

The hourly attorney rate sought by Plaintiff exceeds $125.00 per hour, requiring a finding 

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. 28 U.S.C. § 2412(d)(2)(A). Plaintiff 

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asserts that an increase in the hourly rate is justified in this case due to increases in the cost of 

living as reflected by the Consumer Price Index. The requested award of $7,102.50 represents an 

hourly rate of $240.63 for 28.5 hours of attorney work and an hourly rate of $75.00 for 3.5 hours 

of paralegal work. Plaintiff attached time logs supporting the requested award.

Pursuant to 28 U.S.C. § 2412(d)(2)(A), a prevailing plaintiff is only entitled to “reasonable 

attorney fees.” Here, the Commissioner has not opposed Plaintiff’s assertion that $7,102.50 in 

fees represents an appropriate award pursuant to the EAJA. The requested fees are reasonable. 

Conclusion

In the interest of ensuring adequate representation for those who need it and to minimize 

the cost of that representation to taxpayers, the Court concludes that the motion should be granted. 

Plaintiff should be awarded the requested $7,102.50 in fees and $402.00 in costs. 

The final issue concerns whether the fees are payable to Plaintiff or her attorney. Attorney 

fees under the EAJA are properly payable to the party-litigant, not directly to the attorney. See 

Astrue v. Ratliff, 530 U.S. 586, 130 S.Ct. 2521, 2524, 177 L.Ed.2d 91 (2010). In part, that is to 

make fee payments subject to a government offset to satisfy any pre-existing debt that the litigant 

may owe the United States. Ratliff, 130 S.Ct. at 2524. The present motion asserts that Plaintiff 

assigned her entitlement to EAJA fees to counsel in her retainer agreement and includes a copy of

the retainer agreement. The motion seeks payment directly to counsel if Plaintiff does not owe a 

federal debt that is subject to offset. The motion fails to address the implications of the AntiAssignment Act, 31 U.S.C. § 3727. Accordingly, payment should be made payable to Plaintiff. 

See Cardona v. Commissioner of Social Security, 2023 WL 2577200 (W.D.Tex. March 17, 2023). 

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In sum, Plaintiff, not her attorney should be paid the sum of $7,504.50, representing 

$7,102.50 in fees and $402.00 in costs, in connection with this case. Plaintiff’s payment of fees 

and costs owed to her attorney is a matter of the retainer agreement between them.

RECOMMENDATION

It is RECOMMENDED that the Unopposed Application for Attorney Fees Under the 

Equal Access to Justice Act (ECF 16) be GRANTED and that the Commissioner pay Plaintiff for 

fees incurred totaling $7,102.50 pursuant to the EAJA, 28 U.S.C. § 2412(d), and costs totaling 

$402.00. The payment should be made to Plaintiff but mailed to Plaintiff’s counsel of record. 

Within fourteen days after receipt of the magistrate judge’s report, any party may serve and 

file written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 

636(b). Written objections shall not exceed five pages. Local Rule CV-72(b).

A party’s failure to file written objections to the findings, conclusions and 

recommendations contained in this Report within fourteen days after service shall bar that party 

from de novo review by the district judge of those findings, conclusions and recommendations 

and, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed 

factual findings and legal conclusions accepted and adopted by the district court. Douglass v. 

United Servs. Auto. Assn., 79 F.3d 1415, 1430 (5th Cir.1996) (en banc), superseded by statute on 

other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen 

days). 

So ORDERED and SIGNED this 7th day of July, 2024.

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