Hudson v. Commissioner of Social Security

Filing 27

ORDER signed by Magistrate Judge Dennis M. Cota on 5/7/2019 GRANTING plaintiff's 25 Motion for Attorney Fees. Plaintiff is awarded $6,098.37 in fees plus $19.86 in costs, for a total of $6,118.24, payable to plaintiff. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GERALD WILLIAM HUDSON,

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Plaintiff,

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No. 2:17-CV-0589-DMC

v.

ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Plaintiff, who is proceeding with retained counsel, brought this action for judicial

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review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g).

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Final judgment remanding the matter was entered on September 20, 2018. Pending before the

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court is plaintiff’s motion for an award of $6,848.38 in fees plus $19.86 in costs under the Equal

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Access to Justice Act (EAJA) (Doc. 25).1

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Plaintiff seeks compensation for attorney time and paralegal time.
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I. BACKGROUND

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Plaintiff initiated this action by way of a complaint filed on March 20, 2017. The

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certified administrative record was served on plaintiff and lodged with the court on or about July

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26, 2017, consisting of 420 pages. Thereafter, plaintiff filed a 12-page opening brief on the

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merits on September 11, 2017. In his brief, plaintiff argued: (1) the ALJ erred at Step 2 in finding

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his headaches and anxiety non-severe; (2) the ALJ’s Step 4 residual functional capacity

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assessment is also flawed due to the Step 2 error; and (3) the ALJ failed to develop the record.

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The court found the ALJ erred at Step 2 and remanded the matter for further proceedings.

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II. DISCUSSION
Because this court issued a remand pursuant to sentence four of 42 U.S.C.

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§ 405(g), plaintiff is a prevailing party for EAJA purposes. See Flores v. Shalala, 42 F.3d 562

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(9th Cir. 1995). Under the EAJA, an award of reasonable attorney’s fees is appropriate unless the

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Commissioner’s position was “substantially justified” on law and fact with respect to the issue(s)

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on which the court based its remand. 28 U.S.C. § 2412(d)(1)(A); see Flores, 42 F.3d at

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569. No presumption arises that the Commissioner’s position was not substantially justified

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simply because the Commissioner did not prevail. See Kali v. Bowen, 854 F.2d 329 (9th Cir.

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1988). The Commissioner’s position is substantially justified if there is a genuine dispute. See

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Pierce v. Underwood, 487 U.S. 552 (1988). The burden of establishing substantial justification is

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on the government. See Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001).

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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

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

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other grounds, In re Slimick, 928 F.2d 304 (9th Cir. 1990). For the government’s position to be

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considered substantially justified, however, it must establish substantial justification for both the

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position it took at the agency level as well as the position it took in the district court. See Kali v.

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Bowen, 854 F.2d 329, 332 (9th Cir. 1998). Where, however, 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. See Andrew v. Bowen, 837 F.2d 875, 880 (9th Cir. 1988).

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“The nature and scope of the ALJ’s legal errors are material in determining whether the

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Commissioner’s decision to defend them was substantially justified.” Sampson v. Chater, 103

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F.3d 918, 922 (9th Cir. 1996) (citing Flores, 49 F.3d at 570). If there is no reasonable basis in law

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and fact for the government’s position with respect to the issues on which the court based its

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determination, the government’s position is not “substantially justified” and an award of EAJA

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fees is warranted. See Flores, 42 F.3d at 569-71. A strong indication the government’s position

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was not substantially justified is a court’s “holding that the agency’s decision . . . was

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unsupported by substantial evidence. . . .” Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013).

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Under the EAJA, the court may award “reasonable attorney’s fees,” which are set

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at the market rate. See 28 U.S.C. § 2412(d)(2)(A). The party seeking an award under the EAJA

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bears the burden of establishing the fees requested are reasonable. See Hensley v. Eckerhart, 461

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U.S. 424, 434 (1983); Atkins v. Apfel, 154 F.3d 988 (9th Cir. 1998); see also 28 U.S.C. §

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2412(d)(1)(B) (“A party seeking an award of fees and other expenses shall . . . submit to the court

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an application for fees and other expenses which shows . . . the amount sought, including an

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itemized statement from any attorney . . . stating the actual time expended”). The court has an

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independent duty to review the evidence and determine the reasonableness of the fees requested.

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See Hensley, 461 U.S. at 433, 436-47. Finally, fees awarded under the EAJA are payable directly

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to the client, not counsel. See Astrue v. Ratliff, 130 S.Ct. 2521 (2010).
In this case, defendant argues the Commissioner’s position was substantially

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justified. Defendant also argues the amount of fees requested is unreasonable.2

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Defendant does not challenge the claimed hourly rates, and concedes the amount
requested in costs is appropriate.
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As defendant acknowledges, this court remanded for further proceedings because

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the ALJ applied the incorrect legal standard with respect to the severity of plaintiff’s headache

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impairment at Step 2. Because there is no reasonable basis in law for the government to defend

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the ALJ’s application of an incorrect legal standard, the court finds the Commissioner’s position

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was not substantially justified. See Flores, 42 F.3d at 569-71.

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Defendant also objects to the reasonableness of the fees requested. According to

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defendant, this case was not complex nor did it raise novel issues and, for these reasons, counsel

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spent an unreasonable amount of time reviewing the record and preparing plaintiff’s opening

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brief. Defendant contends plaintiff has not met the burden of establishing reasonableness, but

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does not explain why. Nor does defendant offer any argument as to the specific billing in this

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case related to record review, research, or writing. Defendant merely concludes the court should

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deduct 2 hours “[a]t a minimum.” Having reviewed counsel’s declarations regarding time spent

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on this case, the court does not find the hours claimed to be unreasonable.

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Next, defendant argues the claimed time is unreasonable to the extent counsel

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billed a minimum of six minutes for tasks which defendant characterizes as perfunctory.

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According to defendant, the court should deduct 2.1 attorney hours, presumably accounting for

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billing entries of six minutes of time. Defendant does not, however, specifically address each of

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the challenged billing entries or explain how any six-minute billing entry was related to a

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perfunctory task. Having reviewed the time sheets submitted, the court cannot say that each of

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the six-minute time entries related to a perfunctory task.

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Finally, defendant objects to paralegal time to the extent such time was spent on

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clerical or secretarial tasks. Having reviewed the time sheet for paralegal time submitted at

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Exhibit C to the instant motion, the court agrees. It appears that much of the time billed was for

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clerical and secretarial tasks. Counsel has billed paralegal time at a rate of $125.00 per hour. The

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court finds a reduction of 6 hours paralegal time spent on clerical and secretarial tasks described

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in Exhibit C is appropriate, for a total reduction in the amount of $750.00.

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III. CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s motion for an award of fees under the EAJA is granted;

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Plaintiff is awarded $6,098.37 in fees plus $19.86 in costs, for a total of

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$6,118.24, payable to plaintiff.

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Dated: May 7, 2019
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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