(SS) Shoemaker v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KATHRYN ANN SHOEMAKER, No. 2:19-cv-01230 CKD 12 Plaintiff, 13 v. ORDER 14 ANDREW M. SAUL, Commissioner of Social Security, 15 Defendant. 16 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. 17.) Plaintiff seeks fees 20 in the amount of $8,167.52 based on 34.9 hours of attorney time (at the rate of $205.25 per hour) 21 and 7.9 hours of paralegal time (at the rate of $125.00 per hour). No opposition to the motion has 22 been filed. 23 A. Substantial Justification 24 The EAJA provides that the prevailing party in a civil action against the United States 25 may apply for an order for attorneys’ fees and expenses within thirty days of final judgment in the 26 action. An applicant for Social Security benefits receiving a remand under sentence four of 42 27 U.S.C. § 405(g) is a prevailing party, regardless of whether the applicant later succeeds in 28 obtaining the requested benefits. Shalala v. Schaefer, 509 U.S. 292 (1993). In this case, the 1 matter was remanded under sentence four for further development and analysis of the record 2 pursuant to the stipulation of the parties and order of the court. ECF No. 15. Plaintiff thus is 3 entitled to an award of fees under the EAJA. The court must allow the fee award unless it finds 4 that the position of the United States was substantially justified. Flores v. Shalala, 49 F.3d 562, 5 568-69 (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, defendant stipulated to remand of this action to provide plaintiff an opportunity for a 22 new hearing, allowing the Administrative Law Judge to reconsider the claimant’s subjective 23 complaints; reconsider the claimant’s residual functional capacity and Dr. West’s opinion; if 24 necessary, obtain supplemental evidence from a vocational expert; and issue a new decision. 25 ECF No. 15. Defendant has filed no opposition to the request for attorneys’ fees. Under these 26 circumstances, the court finds that the position of the United States was not substantially justified. 27 Fees under the EAJA will therefore be awarded. 28 //// 2 LDV ENE MMU BO PO i ee PAY VM VI 1 B. Reasonable Fee 2 The EAJA directs the court to award a reasonable fee. In determining whether a fee is 3 | reasonable, the court considers the hours expended, the reasonable hourly rate, and the results 4 | obtained. See Commissioner, INS v. Jean, 496 U.S. 154 (1990); Hensley v. Eckerhart, 461 U.S. 5 | 424 (1983); Atkins v. Apfel, 154 F.3d 986 (9th Cir. 1998). Plaintiff here obtained a stipulated 6 | remand to correct a multitude of errors. With respect to plaintiff's counsel’s time reviewing the 7 | transcript, briefing on the motion for summary judgment and other tasks itemized in counsel’s 8 || schedule of hours, the court has determined the hours claimed are reasonable. See ECF No. 17 at 9 | 11-12. The rate claimed is also reasonable. Plaintiff will therefore be awarded the full amount 10 | requested. The EAJA award must be made by this court to plaintiff, and not to counsel. See 11 | Astrue v. Ratliff, 560 U.S. 586 (2010). 12 Accordingly, IT IS HEREBY ORDERED that fees pursuant to the EAJA are awarded to 13 | plaintiff in the amount of $8,167.52. 14 | Dated: May 13, 2020 rd f | Gx Is CAROLYN K DELANEY 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 || 2/shoemaker1230.eajano-oppo 21 22 23 24 25 26 27 28