Fuhrmann v. Commissioner of Social Secuity

Filing 28

Order by Magistrate Judge Robert M. Illman GRANTING 27 Motion for Attorney Fees.(rmilc1, COURT STAFF) (Filed on 1/17/2023)

Case 1:21-cv-02290-RMI Document 28 Filed 01/17/23 Page 1 of 4

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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KIMBERLEE ANNE FUHRMANN,

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Plaintiff,

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United States District Court
Northern District of California

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Case No. 21-cv-02290-RMI
ORDER GRANTING MOTION FOR
ATTORNEY’S FEES UNDER EAJA

v.
KILOLO KIJAKAZI,

Re: Dkt. No. 27

Defendant.
Plaintiff has filed an application for an award of attorney’s fees in the amount of $8,171.82

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pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 (dkt. 27). Defendant has

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not responded to the motion.

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BACKGROUND
On September 19, 2022, the court issued an opinion and judgment granting Plaintiff’s

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Motion for Summary Judgment and denying Defendant’s Cross Motion for Summary Judgment.

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See (dkt. 25). The court found that the ALJ improperly rejected the opinion of a medical source—

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Dr. McAtee—by relying on “isolated snippets from the record,” which were “largely taken out of

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context.” Id. at 14. Given that “the overwhelming tide of the record evidence” supported the

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conclusions of Dr. McAtee, the court credited the opinion as true as a matter of law. Id. As to

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Plaintiff’s own pain and symptom testimony, the court found that the ALJ’s explanation for the

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rejection of this evidence was “neither clear, nor at all convincing.” Id. at 16. As such, the court

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also credited Plaintiff’s testimony as true as a matter of law. Id.

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In light of these findings, the court remanded the case for an immediate calculation and

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award of benefits, reasoning that “the ALJ’s unsupported conclusions were thoroughly negated by

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the entirety of the record evidence which conclusively establishes Plaintiff’s longstanding

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disability such that no further inquiry is necessary.” Id. at 18-19.
LEGAL STANDARD

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The purpose of the EAJA statute is to “eliminate financial disincentives for those who

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would defend against unjustified government action and thereby to deter the unreasonable exercise

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of government authority.” Guitierrez v. Barnhart, 274 F.3d 1255, 1262 (9th Cir. 2001) (quoting

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Ardestani v. INS, 502 US 129, 138 (1991)). To prevail on a motion for EAJA fees, the plaintiff

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must be a prevailing party and the government’s position must be without substantial justification.

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Hensley v. Eckerhart, 461 US 424, 433 (1983).
DISCUSSION

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Plaintiff as Prevailing Party
An applicant for Social Security benefits who receives a remand under sentence four of 42

United States District Court
Northern District of California

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U.S.C. §405(g) is a “prevailing party” and eligible for fees and costs under the EAJA. Shalala v.

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Schaefer, 509 U.S. 292, 302 (1993). Plaintiff is therefore a prevailing party within the meaning of

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the law. Because Plaintiff's net worth was less than $2,000,000 when the civil action was filed, she

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is an eligible party under 28 U.S.C. § 2412(d)(2)(B).1

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Position of the United States Was Not Substantially Justified
Because Plaintiff was the prevailing party in this case, the EAJA mandates an award of

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attorney’s fees “unless the court finds the position of the United States was substantially justified

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or that special circumstances make an award unjust.” 28 USC § 2412(d)(1)(A); Thomas v.

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Peterson, 841 F.2d 332, 335 (9th Cir. 1998). The Commissioner in this case bears the burden of

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establishing that her position was "substantially justified." Barnhart, 274 F.3d at 1258. In order to

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meet this standard, the government must show its position was “justified in substance or in the

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main – that is, justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood,

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487 U.S. 552, 565 (1988) (internal quotation marks omitted). “Put differently, the government's

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position must have a reasonable basis both in law and fact.” Meier v. Colvin, 727 F.3d 867, 870

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(9th Cir. 2013). Under the EAJA, both the “government's litigation position and the underlying

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The court granted Plaintiff’s Application to Proceed in Forma Pauperis on April 8, 2021. See (dkt. 6).

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agency action giving rise to the civil action” must be substantially justified in order to avoid an

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award of fees. Id. Thus, “[t]he government’s position must be substantially justified at each stage

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of the proceedings.” Id. at 872 (quoting Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir. 1998)

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(internal quotation marks omitted).

United States District Court
Northern District of California

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In this circuit, “a holding that the agency’s decision was unsupported by substantial

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evidence is a strong indication that the position of the United States was not substantially

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justified.” Meier, 727 F.3d at 872 (internal quotations and modifications omitted); see also

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Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005) (“[I]t will be only a decidedly unusual

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case in which there is substantial justification under the EAJA even though the agency’s decision

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was reversed as lacking in reasonable, substantial and probative evidence in the record”). In this

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case, the court found that the ALJ’s decision was afflicted with multiple and significant errors,

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including the improper evaluation of both the opinion of Dr. McAtee and Plaintiff’s own pain and

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symptom testimony. In light of these and other significant flaws in the ALJ’s ruling, the United

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States’ defense of that decision was not substantially justified.

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Plaintiff’s Fee Request is Not Excessive

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Under the EAJA, Plaintiff is entitled to “reasonable” fees. 28 U.S.C. § 2412(d)(2)(A).

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Determining whether the expenditure of time litigating a Social Security case was reasonable “will

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always depend on case-specific factors including, among others, the complexity of the legal issues,

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the procedural history, the size of the record, and when counsel was retained”—courts cannot

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apply de facto caps limiting the hours attorneys can reasonably expend. Costa v. Comm’r of SSA,

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690 F.3d 1132, 1136, 1137 (9th Cir. 2012).

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Plaintiff’s current attorney did not represent Plaintiff at the administrative hearing. Thus,

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he first became familiar with the record while preparing to file Plaintiff’s Motion for Summary

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Judgment. Additionally, he reviewed and respond to the arguments made in Defendant’s Cross

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Motion. The court has reviewed the relevant materials and finds that the hours expended by

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Plaintiff’s attorney in litigating this action were a reasonable expenditure of time in light of the

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circumstances of the case.

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Generally, fees under the EAJA are not to exceed $125 per hour, "unless the court
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determines that an increase in the cost of living or a special factor, such as the limited availability

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of qualified attorneys for the proceedings involved justifies a higher fee." 28 U.S.C. §

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2412(d)(2)(A). The EAJA statutory maximum hourly rate in the Ninth Circuit, adjusted for

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increases in the cost of living, was $217.54 for 2021 and $234.95 for 2022.2 Plaintiff’s attorney

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has provided a Declaration explaining that he spent at least 37.3 hours litigating this case,

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comprised of 33.1 hours in 2021 ($7,200.57) and 4.2 hours in 2022 ($972.25)3. See (dkt. 27-2)
Based on the foregoing, the court finds that Plaintiff meets the statutory requirements for

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an award of attorney’s fees in the amount of $8,172.82 under the EAJA, 28 U.S.C. § 2412(d).

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Accordingly, Plaintiff’s Motion for Attorney Fees under the EAJA in that amount is GRANTED
IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: January 17, 2023

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ROBERT M. ILLMAN
United States Magistrate Judge

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See table set forth at: https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ (citing 28 U.S.C. §
2412(d)(2)(A)).
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Plaintiff’s attorney has requested an hourly rate of $231.49 for 2022.

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