Jekov v. Commissioner of Social Security

Filing 23

ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/26/13 ORDERING that fees pursuant to the EAJA are AWARDED to plaintiff in the amount of $2,798.40. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PATRICIA JEKOV,

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No. 2:12-cv-2768 CKD

Plaintiff,
v.

ORDER

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Plaintiff’s motion for an award of attorneys’ fees under the Equal Access to Justice Act

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(EAJA), 28 U.S.C. § 2412(d)(1), is pending before the court. Plaintiff seeks fees in the amount of

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$2,798.40 based on 15 hours at the rate of $186.56 per hour for attorney time. No opposition to

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the motion has been filed.

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A. Substantial Justification

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The EAJA provides that the prevailing party in a civil action against the United States

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may apply for an order for attorneys’ fees and expenses within thirty days of final judgment in the

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action. An applicant for Social Security benefits receiving a remand under sentence four of 42

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U.S.C. § 405(g) is a prevailing party, regardless of whether the applicant later succeeds in

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obtaining the requested benefits. Shalala v. Schaefer, 509 U.S. 292 (1993). In this case, the

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matter was remanded under sentence four for further development and analysis of the record
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pursuant to the stipulation of the parties and order of the court. ECF No. 21. Plaintiff thus is

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entitled to an award of fees under the EAJA. The court must allow the fee award unless it finds

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that the position of the United States was substantially justified. Flores v. Shalala, 49 F.3d 562,

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568-69 (9th Cir. 1995).

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The burden of establishing substantial justification is on the government. Gutierrez v.

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Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001). In Pierce v. Underwood, 487 U.S. 552 (1988), the

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Supreme Court defined “substantial justification” as ‘justified in substance or in the main’ -- that

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is, justified to a degree that could satisfy a reasonable person. That is no different from the

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‘reasonable basis in both law and fact’ formulation adopted by the Ninth Circuit and the vast

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majority of other Courts of Appeals that have addressed this issue. Id. at 565. A position does

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not have to be correct to be substantially justified. Id. at 566 n.2; see also Russell v. Sullivan, 930

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F.2d 1443, 1445 (9th Cir. 1991), receded from on other grounds, Sorenson v. Mink, 239 F.3d

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1140 (9th Cir. 2001); Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002).

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In determining substantial justification, the court reviews both the underlying

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governmental action being defended in the litigation and the positions taken by the government in

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the litigation itself. Barry v. Bowen, 825 F.2d 1324, 1331 (9th Cir. 1987), disapproved on other

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grounds, In re Slimick, 928 F.2d 304 (9th Cir. 1990). Where the underlying government action

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was not substantially justified, it is unnecessary to determine whether the government’s litigation

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position was substantially justified. Andrew v. Bowen, 837 F.2d 875, 880 (9th Cir. 1988).

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Here, defendant stipulated to remand of this action to provide plaintiff an opportunity for a

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new hearing, to determine whether plaintiff had a possible earlier date of onset, to further evaluate

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plaintiff’s residual functional capacity, to further evaluate plaintiff’s credibility, to reassess lay

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witness testimony, and if necessary, to obtain testimony from a vocational expert. Defendant has

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filed no opposition to the request for attorneys fees. Under these circumstances, the court finds

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that the position of the United States was not substantially justified. Fees under the EAJA will

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therefore be awarded.

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B. Reasonable Fee

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The EAJA directs the court to award a reasonable fee. In determining whether a fee is

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reasonable, the court considers the hours expended, the reasonable hourly rate, and the results

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obtained. See Commissioner, INS v. Jean, 496 U.S. 154 (1990); Hensley v. Eckerhart, 461 U.S.

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424 (1983); Atkins v. Apfel, 154 F.3d 986 (9th Cir. 1998). Plaintiff here obtained a stipulated

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remand to correct a multitude of errors. With respect to plaintiff’s counsel’s time reviewing the

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transcript, briefing on the motion for summary judgment and other tasks itemized in counsel’s

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schedule of hours, the court has determined the hours claimed are reasonable. The rate claimed is

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also reasonable. Plaintiff will therefore be awarded the full amount requested. The EAJA award

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must be made by this court to plaintiff, and not to counsel. See Astrue v. Ratliff, __ U.S. __, 130

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S. Ct. 2521 (2010).

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Accordingly, IT IS HEREBY ORDERED that fees pursuant to the EAJA are awarded to

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plaintiff in the amount of $2,798.40.

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Dated: November 26, 2013

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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