Cox v. Commissioner of Social Security Administration

Filing 22

ORDER the Amended Motion for Attorney Fees (Docs. 19 and 21 is GRANTED. Plaintiff is awarded attorney fees in the amount of $4,636.41. Signed by Senior Judge David C Bury on 1/2/2019. (see Order for additional details) (SIB)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Lois Cox,

No. CV-17-00335-TUC-DCB
Plaintiff,

10
11

v.

12

Commissioner
Administration,

ORDER

13
14

of

Social

Security

Defendant.

15

On July 25, 2018, the Court reversed the final decision of the Defendant, Nancy A.

16

Berryhill, Acting Commissioner of Social Security (Commissioner), without a remand for

17

a rehearing and awarded benefits, (Order (Doc. 17)), and entered Judgment (Doc. 18) for

18

the Plaintiff. Accordingly, the Plaintiff is a prevailing party. 42 U.S.C. § 405(g); Shalala

19

v. Schaefer, 509 U.S. 292, 296-97 & n.2 (1993). She meets the statutory requirement for

20

an award of attorney fees because her net worth did not exceed $2,000,000 when the civil

21

action was filed. 28 U.S.C. § 2412(d)(2)(B). The purpose of an attorney fee award under

22

the Equal Access to Justice Act (EAJA) is to enable private litigants, like the Plaintiff, to

23

afford the expense of seeking review of unreasonable government action and to

24

encourage litigants of limited means, like the Plaintiff, to vindicate their rights.

25

Scarborough v. Principi, 541 U.S. 401, 417 (2004).

26

Plaintiff is entitled to attorney fees under the EAJA if the Commissioner’s position

27

was not substantially justified. 28 U.S.C. § 2412(d)(1)(B). The Commissioner has the

28

burden of persuasion to show that her position was substantially justified, Scarborough,

1

541 U.S. at 414-15, meaning the Commissioner’s position had a reasonable basis in law

2

and in fact, Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988). When substantial

3

evidence does not support an agency’s decision, only in a decidedly unusual case will the

4

government’s position be substantially justified. Campbell v. Astrue, 736 F.3d 867, 869

5

(9th Cir. 2013); Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005).

6
7

Plaintiff’s Amended Motion seeks such an award of attorney fees in the amount of
$4,636.41, and Defendant has no objection.

8

After reviewing the record, the Court finds that the agency’s decision was not

9

substantially justified, i.e., it did not have a reasonable basis in law or fact. The Court finds

10

the amount requested for attorney fees complies with the provisions of the EAJA because

11

both the hourly rate and number of hours related to the attorney fee request are reasonable.

12

See 28 U.S.C. § 2412(d)(2)(A).

13

Accordingly,

14

IT IS ORDERED that the Amended Motion for Attorney Fees (Docs. 19 and 21 is

15
16
17
18

GRANTED.
IT IS FURTHER ORDERED that Plaintiff is awarded attorney fees in the amount
of $4,636.41.
IT IS FURTHER ORDERED that if, after receiving the Court’s EAJA fee order,

19

the Defendant determines upon effectuation of the Court’s EAJA fee order that Plaintiff

20

does not owe a debt that is subject to offset under the Treasury Offset Program, the fees

21

will be made payable to Plaintiff’s attorneys. However, if there is a debt owed that is

22

subject to offset under the Treasury Offset Program, the remaining EAJA fees after offset

23

will be paid by a check made out to Plaintiff but delivered to Plaintiff’s attorneys at:

24

Hallinan & Killpack Law Firm, 5240 E. Pima St., Tucson AZ, 85712.

25

///

26

///

27

///

28

-2-

1
2
3

IT IS FURTHER ORDERED that the Clerk of the Court shall amend the
Judgment accordingly.
Dated this 2nd day of January, 2019.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-3-