Magnuson v. Commissioner of Social Security

Filing 31

ORDER signed by Magistrate Judge Carolyn K. Delaney on 3/7/2018 ORDERING that fees pursuant to the EAJA are AWARDED to plaintiff in the amount of $8,854.93. (Fabillaran, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SCOTT A. MAGNUSON,

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Plaintiff,

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No. 2:16-cv-2653 CKD

v.

ORDER

NANCY A. BERRYHILL,
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. (ECF No. 28.) Defendant has filed

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an opposition. (ECF No. 30.) Plaintiff seeks fees in the amount of $9,959.57.
Defendant, who agreed to remand this case for further proceedings after plaintiff moved

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for summary judgment, does not dispute that plaintiff was the prevailing party under sentence

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four of 42 U.S.C. § 405(g). Defendant also does not dispute that plaintiff is entitled to $8,854.93

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of the requested fees.
At issue is the remaining $1,104.64 of the requested fees1, incurred by plaintiff in

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opposing defendant’s motion to remand this case pursuant to sentence four of § 405(g). (See ECF
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This is the amount billed for plaintiff’s counsel’s activities on September 6, 2017, described as
analyzing the government’s motion for remand and drafting an opposition. (ECF No. 29-2.)
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Nos. 24 & 25.)

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A. Substantial Justification

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Prior to defendant filing the motion for remand on September 1, 2017, the parties engaged

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in lengthy discussions about a possible stipulation to remand the case. (See ECF No. 29-2.)

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Defendant’s position was that the case should be remanded for the ALJ’s decision to be vacated

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and plaintiff’s claim considered anew. (See ECF No. 24 at 6.) However, plaintiff declined to

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“consent to order authorizing Commissioner to vacate prior unchallenged findings.” (See ECF

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No. 29-2.) Plaintiff was willing to stipulate to some further development of the record, including

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medical evidence from Dr. Sapienza and supplemental testimony from a vocational expert. (See

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ECF No. 25-1.) When the parties could not agree to a stipulation, plaintiff filed an opposition to

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defendant’s motion, seeking an award of benefits and, alternatively, a remand limited to

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“correcting the issues raised in this appeal only.” (ECF No. 25 at 1.)

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Defendant’s motion for remand was granted in part and denied in part as follows:
The issues raised on appeal concern the ALJ’s step five
determination. Thus, on remand, the ALJ will consider the medical
records from Dr. Sapienza . . . ; redetermine plaintiff’s RFC in light
of the medical evidence in the record, including Dr. Sapienza’s
report; and obtain supplemental testimony from a vocational expert
that is based on all plaintiff’s assessed limitations.

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(ECF No. 26 at 8.) The court agreed with defendant that (1) a remand for payment of benefits

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was not warranted, and (2) plaintiff’s RFC should be reassessed after additional medical evidence

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was considered. The court stopped short of vacating the ALJ’s entire decision as defendant

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requested, but ordered supplemental VE testimony as proposed by plaintiff. (ECF No. 26.)

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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 of the record by order of the

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court on plaintiff’s motion for summary judgment and defendant’s motion to remand. (ECF No.
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26.) The court must allow the fee award unless it finds that the position of the United States was

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substantially justified. Flores v. Shalala, 49 F.3d 562, 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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For the foregoing reasons, the court finds that the government’s position in its motion to

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remand was substantially justified, such that no award of fees will be made for the time spent

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opposing that motion.

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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). Having reviewed the plaintiff’s

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invoice, the court concludes that the hours expended and hourly rate were reasonable, with

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counsel’s efforts resulting in a grant of summary judgment. The EAJA award must be made by

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this court to plaintiff, and not to counsel. See Astrue v. Ratliff, __ U.S. __, 130 S.Ct. 2521
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(2010).
Accordingly, IT IS HEREBY ORDERED that fees pursuant to the EAJA are awarded to

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plaintiff in the amount of $8,854.93.

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Dated: March 7, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2 / magnuson2653.eaja

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