(SS) Martin v. Commissioner of Social Security

Filing 33

ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/13/2020 GRANTING 29 Motion for Attorney Fees. Fees pursuant to the EAJA are AWARDED to Plaintiff in the amount of $12,290.46. (Mena-Sanchez, L)

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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 CHERYL L. MARTIN, 12 13 14 15 16 No. 2:18-cv-02911 CKD Plaintiff, v. ORDER ANDREW SAUL, Commissioner of Social Security, Defendant. 17 18 Plaintiff’s motion for an award of attorneys’ fees under the Equal Access to Justice Act 19 (EAJA), 28 U.S.C. § 2412(d)(1), is pending before the court. (ECF No. 29.) Plaintiff seeks fees 20 in the amount of $12,290.46 based on 59.9 hours. Plaintiff’s counsel’s work in the district court 21 proceedings in this case spanned the years 2018, 2019, and 2020. Plaintiff seeks reimbursement 22 for 1.1 hours at the 2018 EAJA rate of $201.60; 56.8 hours at the 2019 EAJA rate of $205.25; and 23 2.0 hours at the 2020 EAJA rate of $205.25. Defendant has filed an opposition. (ECF No. 32.) 24 A. Substantial Justification 25 The EAJA provides that the prevailing party in a civil action against the United States 26 may apply for an order for attorneys’ fees and expenses within thirty days of final judgment in the 27 action. An applicant for Social Security benefits receiving a remand under sentence four of 42 28 U.S.C. § 405(g) is a prevailing party, regardless of whether the applicant later succeeds in 1 1 obtaining the requested benefits. Shalala v. Schaefer, 509 U.S. 292 (1993). In this case, 2 judgment was entered in plaintiff’s favor and the matter remanded for an immediate award of 3 benefits. Plaintiff thus is entitled to an award of fees under the EAJA. The court must allow the 4 fee award unless it finds that the position of the United States was substantially justified. Flores 5 v. Shalala, 49 F.3d 562, 568-69 (9th Cir. 1995). 6 The burden of establishing substantial justification is on the government. Gutierrez v. 7 Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001). In Pierce v. Underwood, 487 U.S. 552 (1988), the 8 Supreme Court defined “substantial justification” as ‘justified in substance or in the main’ -- that 9 is, justified to a degree that could satisfy a reasonable person. That is no different from the 10 ‘reasonable basis in both law and fact’ formulation adopted by the Ninth Circuit and the vast 11 majority of other Courts of Appeals that have addressed this issue. Id. at 565. A position does 12 not have to be correct to be substantially justified. Id. at 566 n.2; see also Russell v. Sullivan, 930 13 F.2d 1443, 1445 (9th Cir. 1991), receded from on other grounds, Sorenson v. Mink, 239 F.3d 14 1140 (9th Cir. 2001); Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002). 15 In determining substantial justification, the court reviews both the underlying 16 governmental action being defended in the litigation and the positions taken by the government in 17 the litigation itself. Barry v. Bowen, 825 F.2d 1324, 1331 (9th Cir. 1987), disapproved on other 18 grounds, In re Slimick, 928 F.2d 304 (9th Cir. 1990). Where the underlying government action 19 was not substantially justified, it is unnecessary to determine whether the government’s litigation 20 position was substantially justified. Andrew v. Bowen, 837 F.2d 875, 880 (9th Cir. 1988). 21 Here, the court held that the ALJ erred when rejecting the opinions of plaintiff’s treating 22 rheumatologist that she was unable to sustained work at the sedentary level and further erred by 23 not including mental limitations in the RFC finding. (ECF No. 27 at 11, 14.) The court found 24 that the record was fully developed and a remand for further administrative proceedings would 25 serve no purpose. (Id. at 14-16.) The court reversed the Commissioner’s decision and remanded 26 the matter for immediate award of benefits. (Id. at 16.) 27 28 Defendant contends the government’s position was substantially justified. In support of this contention, defendant argues the same contentions submitted in support of the government’s 2 1 cross-motion for summary judgment. Although defendant is correct that the government can lose 2 on the merits and its position still be substantially justified for purposes of EAJA, having 3 reviewed the record and argument in this case, and given the outcome of remand for benefits, the 4 court finds that the position of the United States was not substantially justified. Fees under the 5 EAJA will therefore be awarded. 6 B. Reasonable Fee 7 The EAJA directs the court to award a reasonable fee. In determining whether a fee is 8 reasonable, the court considers the hours expended, the reasonable hourly rate, and the results 9 obtained. See Commissioner, INS v. Jean, 496 U.S. 154 (1990); Hensley v. Eckerhart, 461 U.S. 10 424 (1983); Atkins v. Apfel, 154 F.3d 986 (9th Cir. 1998). Here, plaintiff’s counsel obtained a 11 judgment in plaintiff’s favor and a remand for an immediate award of benefits. 12 Defendant contends that plaintiff’s billing was not adequately itemized and thus 13 unreasonable. Plaintiff submitted a 44-page opening brief and a 4-page reply brief, based on 14 review of a 2,395-page Administrative Transcript including a voluminous medical record. With 15 respect to plaintiff’s counsel’s time reviewing the transcript, briefing on the motion for summary 16 judgment and other tasks itemized in counsel’s schedule of hours, the court has determined the 17 hours claimed are reasonable. Plaintiff’s counsel’s tasks are adequately itemized. See ECF No. 18 29-3. The rate claimed is also reasonable. Plaintiff will therefore be awarded the full amount 19 requested. The EAJA award must be made by this court to plaintiff, and not to counsel. See 20 Astrue v. Ratliff, __ U.S. __, 130 S. Ct. 2521 (2010). 21 Accordingly, IT IS HEREBY ORDERED that: 22 1. 23 2. Fees pursuant to the EAJA are awarded to plaintiff in the amount of $12,290.46. 24 Plaintiff’s motion for EAJA fees (ECF No. 29) is granted; and Dated: October 13, 2020 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 25 26 27 2.martin2911.eaja.mot-opp 28 3

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