ORDER AND REASONS

CARL BARBIER, District Judge

Before the Court is plaintiff's Petition for Attorney's Fees. Rec. Doc. 20. The Commissioner opposes the motion. The motion, set for hearing on May 25, 2005, is before the Court on briefs without oral argument.

In her motion, plaintiff seeks an award of attorney's fees in the amount of $5,472.00, which represents 36 hours of legal work at a rate of $152.00 per hour. The Commissioner argues that plaintiff is not entitled to fees because her decision in this case was substantially justified. In the alternative, the Commissioner contends the amount is excessive on two grounds: first, that the hourly rate requested exceeds the maximum statutory rate of $125.00 per hour; and second, that preparation of the fee petition should only have taken one and a half hours, so at any rate, plaintiff's counsel should be compensated for 34.5 hours rather than 36.

The Equal Access to Justice Act provides that "a court may award reasonable fees and expenses of attorneys . . . to the prevailing party in any civil action brought . . . against the United States or any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction of such action." 28 U.S.C.A. § 2412(b). 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." 28 U.S.C.A. § 2412(d)(2)(A).

Having reviewed the record, the memoranda of the parties, and applicable law, the Court finds that plaintiff is a prevailing party for purposes of the Equal Access to Justice Act, and the Commissioner has failed to adequately demonstrate that its position was substantially justified. The Court also finds that counsel's time should not be cut by an hour and a half. Accordingly, plaintiff is entitled to a fee award for 36 hours of time.

With respect to the rate sought, the Court agrees with the Commissioner that plaintiff has failed to demonstrate, by competent evidence and controlling precedent, that an increased cost of living or other special factor justifies a higher hourly rate in this case than that specified by statute. The case cited in support of plaintiff's position, Baker v. Bowen, 839 F.2d 1075 (5^th Cir. 1988), predates the 1996 amendments which raised the statutory rate from $75 to $125 per hour, and in contrast to plaintiff's assertion that Baker suggests cost of living increases should be automatic, that case states specifically that "while the statute allows an adjustment for changes in the cost of living, it does not absolutely require it." Id. at 1084 (emphasis in original).

Accordingly, the Court finds that plaintiff's Petition for Attorney's Fees (Rec. Doc. 20) should be GRANTED, and plaintiff is entitled to a fee award for 36 hours at $125 per hour, or $4500.00.

IT IS SO ORDERED.