REPORT AND RECOMMENDATION

BERNARD M. JONES, Magistrate Judge.

Now before the Court is Plaintiff Lynlee Michele Rowden's Application for Award of Attorney's Fees Under the Equal Access to Justice Act (EAJA) [Doc. No. 19]. The matter has been re-referred by United States District Judge Scott L. Palk for proposed findings and recommendations regarding Plaintiff's Application. See 28 U.S.C. § 636(b)(1)(B), and (C). For the reasons set forth below, it is recommended that Plaintiff's Application be granted.

ANALYSIS

Pursuant to the EAJA, 28 U.S.C. § 2412, Plaintiff seeks a total award of fees in the amount of $2,140.20 [Doc. No. 19]. The Commissioner has filed a Response advising that she does not oppose the request by Plaintiff for $2,140.20 in attorney's fees [Doc. No. 21].

The EAJA authorizes an attorney fee award where (1) the plaintiff is a prevailing party; (2) the position of the United States was not substantially justified; and (3) no special circumstances exist to render an award of fees unjust. See Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007) (citing 28 U.S.C. § 2412(d)(1)(A)).

Plaintiff sought judicial review of the Social Security Administration's denial of her application for supplemental security income (SSI). On September 5, 2018, the Court entered Judgment, reversing the Commissioner's decision and remanding the matter for further proceedings, [Doc. No. 18]. Therefore, Plaintiff is the prevailing party in this action under the Social Security Act, 42 U.S.C. § 405(g).

Because the Commissioner bears the burden of proof to show that her position was substantially justified, see Hackett, 475 F.3d at 1172, and she did not attempt to defend her position, the Court finds the position of the United States was not substantially justified. Further, there do not appear to be any special circumstances to render an award of fees unjust. The Court also notes that Plaintiff's counsel substantiated her fee with time records and that the Commissioner did not object to the reasonableness of the fee. As such, the Court recommends that Plaintiff's Application be granted.

RECOMMENDATION

Based on the foregoing, it is recommended that Plaintiff's Application for Award of Attorney's Fees Under the Equal Access to Justice Act [Doc. No. 19] be GRANTED. If this Report and Recommendation is adopted, it is further recommended that the government be ordered to pay Plaintiff in the amount of $2,140.20.1 If attorney fees are also awarded under 42 U.S.C. § 406(b), Plaintiff's attorney should refund the smaller amount to Plaintiff as required by Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986).

NOTICE OF RIGHT TO OBJECT

The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by December 17, 2018. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. See Moore v. United States, 950 F.2d 656 (10th Cir. 1991).

STATUS OF REFERRAL

This Report and Recommendation terminates the referral by the District Judge in this matter.