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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SCOTT A. MAGNUSON, 12 Plaintiff, 13 14 15 No. 2:16-cv-2653 CKD v. ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 Plaintiff’s motion for an award of attorneys’ fees under the Equal Access to Justice Act 18 19 (EAJA), 28 U.S.C. § 2412(d)(1), is pending before the court. (ECF No. 28.) Defendant has filed 20 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 21 22 for summary judgment, does not dispute that plaintiff was the prevailing party under sentence 23 four of 42 U.S.C. § 405(g). Defendant also does not dispute that plaintiff is entitled to $8,854.93 24 of the requested fees. At issue is the remaining $1,104.64 of the requested fees1, incurred by plaintiff in 25 26 27 28 opposing defendant’s motion to remand this case pursuant to sentence four of § 405(g). (See ECF 1 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.) 1 1 Nos. 24 & 25.) 2 A. Substantial Justification 3 Prior to defendant filing the motion for remand on September 1, 2017, the parties engaged 4 in lengthy discussions about a possible stipulation to remand the case. (See ECF No. 29-2.) 5 Defendant’s position was that the case should be remanded for the ALJ’s decision to be vacated 6 and plaintiff’s claim considered anew. (See ECF No. 24 at 6.) However, plaintiff declined to 7 “consent to order authorizing Commissioner to vacate prior unchallenged findings.” (See ECF 8 No. 29-2.) Plaintiff was willing to stipulate to some further development of the record, including 9 medical evidence from Dr. Sapienza and supplemental testimony from a vocational expert. (See 10 ECF No. 25-1.) When the parties could not agree to a stipulation, plaintiff filed an opposition to 11 defendant’s motion, seeking an award of benefits and, alternatively, a remand limited to 12 “correcting the issues raised in this appeal only.” (ECF No. 25 at 1.) 13 14 15 16 17 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. 18 (ECF No. 26 at 8.) The court agreed with defendant that (1) a remand for payment of benefits 19 was not warranted, and (2) plaintiff’s RFC should be reassessed after additional medical evidence 20 was considered. The court stopped short of vacating the ALJ’s entire decision as defendant 21 requested, but ordered supplemental VE testimony as proposed by plaintiff. (ECF No. 26.) 22 The EAJA provides that the prevailing party in a civil action against the United States 23 may apply for an order for attorneys’ fees and expenses within thirty days of final judgment in the 24 action. An applicant for Social Security benefits receiving a remand under sentence four of 42 25 U.S.C. § 405(g) is a prevailing party, regardless of whether the applicant later succeeds in 26 obtaining the requested benefits. Shalala v. Schaefer, 509 U.S. 292 (1993). In this case, the 27 matter was remanded under sentence four for further development of the record by order of the 28 court on plaintiff’s motion for summary judgment and defendant’s motion to remand. (ECF No. 2 1 26.) The court must allow the fee award unless it finds that the position of the United States was 2 substantially justified. Flores v. Shalala, 49 F.3d 562, 568-69 (9th Cir. 1995). 3 The burden of establishing substantial justification is on the government. Gutierrez v. 4 Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001). In Pierce v. Underwood, 487 U.S. 552 (1988), the 5 Supreme Court defined “substantial justification” as ‘justified in substance or in the main’ -- that 6 is, justified to a degree that could satisfy a reasonable person. That is no different from the 7 ‘reasonable basis in both law and fact’ formulation adopted by the Ninth Circuit and the vast 8 majority of other Courts of Appeals that have addressed this issue. Id. at 565. A position does 9 not have to be correct to be substantially justified. Id. at 566 n.2; see also Russell v. Sullivan, 930 10 F.2d 1443, 1445 (9th Cir. 1991), receded from on other grounds, Sorenson v. Mink, 239 F.3d 11 1140 (9th Cir. 2001); Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002). 12 In determining substantial justification, the court reviews both the underlying 13 governmental action being defended in the litigation and the positions taken by the government in 14 the litigation itself. Barry v. Bowen, 825 F.2d 1324, 1331 (9th Cir. 1987), disapproved on other 15 grounds, In re Slimick, 928 F.2d 304 (9th Cir. 1990). Where the underlying government action 16 was not substantially justified, it is unnecessary to determine whether the government’s litigation 17 position was substantially justified. Andrew v. Bowen, 837 F.2d 875, 880 (9th Cir. 1988). 18 For the foregoing reasons, the court finds that the government’s position in its motion to 19 remand was substantially justified, such that no award of fees will be made for the time spent 20 opposing that motion. 21 B. Reasonable Fee 22 The EAJA directs the court to award a reasonable fee. In determining whether a fee is 23 reasonable, the court considers the hours expended, the reasonable hourly rate, and the results 24 obtained. See Commissioner, INS v. Jean, 496 U.S. 154 (1990); Hensley v. Eckerhart, 461 U.S. 25 424 (1983); Atkins v. Apfel, 154 F.3d 986 (9th Cir. 1998). Having reviewed the plaintiff’s 26 invoice, the court concludes that the hours expended and hourly rate were reasonable, with 27 counsel’s efforts resulting in a grant of summary judgment. The EAJA award must be made by 28 this court to plaintiff, and not to counsel. See Astrue v. Ratliff, __ U.S. __, 130 S.Ct. 2521 3 1 2 (2010). Accordingly, IT IS HEREBY ORDERED that fees pursuant to the EAJA are awarded to 3 plaintiff in the amount of $8,854.93. 4 Dated: March 7, 2018 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 2 / magnuson2653.eaja 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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