(SS) Reece v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARY SAMANTHA REECE, No. 2:19-cv-02376 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. 29.) Plaintiff seeks fees 20 and expenses in the amount of $12,311.91 based on 35.2 hours attorney time and 34.4 hours 21 paralegal time. Plaintiff’s counsel’s work in the district court proceedings spanned the years 22 2019, 2020, and 2021. Plaintiff’s motion seeks reimbursement based on the 2019 EAJA rate of 23 $205.25 and the first half-2020 EAJA rate of $206.77. See ECF No. 29-2. No opposition to the 24 motion has been filed. 25 A. Substantial Justification 26 The EAJA provides that the prevailing party in a civil action against the United States 27 may apply for an order for attorneys’ fees and expenses within thirty days of final judgment in the 28 action. An applicant for Social Security benefits receiving a remand under sentence four of 42 1 U.S.C. § 405(g) is a prevailing party, regardless of whether the applicant later succeeds in 2 obtaining the requested benefits. Shalala v. Schaefer, 509 U.S. 292 (1993). In this case, the 3 matter was remanded under sentence four for further development and analysis of the record 4 pursuant to the stipulation of the parties and order of the court. ECF No. 27. Plaintiff thus is 5 entitled to an award of fees under the EAJA. The court must allow the fee award unless it finds 6 that the position of the United States was substantially justified. Flores v. Shalala, 49 F.3d 562, 7 568-69 (9th Cir. 1995). 8 The burden of establishing substantial justification is on the government. Gutierrez v. 9 Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001). In Pierce v. Underwood, 487 U.S. 552 (1988), the 10 Supreme Court defined “substantial justification” as ‘justified in substance or in the main’ -- that 11 is, justified to a degree that could satisfy a reasonable person. That is no different from the 12 ‘reasonable basis in both law and fact’ formulation adopted by the Ninth Circuit and the vast 13 majority of other Courts of Appeals that have addressed this issue. Id. at 565. A position does 14 not have to be correct to be substantially justified. Id. at 566 n.2; see also Russell v. Sullivan, 930 15 F.2d 1443, 1445 (9th Cir. 1991), receded from on other grounds, Sorenson v. Mink, 239 F.3d 16 1140 (9th Cir. 2001); Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002). 17 In determining substantial justification, the court reviews both the underlying 18 governmental action being defended in the litigation and the positions taken by the government in 19 the litigation itself. Barry v. Bowen, 825 F.2d 1324, 1331 (9th Cir. 1987), disapproved on other 20 grounds, In re Slimick, 928 F.2d 304 (9th Cir. 1990). Where the underlying government action 21 was not substantially justified, it is unnecessary to determine whether the government’s litigation 22 position was substantially justified. Andrew v. Bowen, 837 F.2d 875, 880 (9th Cir. 1988). 23 Here, the January 27, 2021 stipulation and order reflect ALJ error, providing: “Upon 24 remand, the Administrative Law Judge will be instructed to reevaluate the medical evidence of 25 record, reevaluate Plaintiff’s maximum residual functional capacity pursuant to the relevant 26 regulations, and take further action as appropriate to issue a new decision, including taking 27 additional evidence.” (ECF No. 27 at 1:24-27). Defendant has filed no opposition to the request 28 for attorneys’ fees. Under these circumstances, the court finds that the position of the United 1 | States was not substantially justified. Fees under the EAJA will therefore be awarded. 2 B. Reasonable Fee 3 The EAJA directs the court to award a reasonable fee. In determining whether a fee is 4 || reasonable, the court considers the hours expended, the reasonable hourly rate, and the results 5 || obtained. See Commissioner, INS v. Jean, 496 U.S. 154 (1990); Hensley v. Eckerhart, 461 U.S. 6 | 424 (1983); Atkins v. Apfel, 154 F.3d 986 (9th Cir. 1998). Here, plaintiffs counsel obtained a 7 || judgment in plaintiff's favor and a remand requiring reevaluation of the medical evidence, 8 | reevaluation of plaintiff's residual functional capacity, and the taking of additional evidence. 9 || Defendant has not contested either the rates requested for plaintiff's counsel or counsel’s 10 || paralegal. Defendant also has not contested the total time spent or the reductions made by 11 | plaintiffs counsel in the exercise of his professional judgment. Plaintiff's counsel’s tasks are 12 || adequately itemized. See ECF No. 29. The rates claimed for counsel and his paralegal are 13 || reasonable. Plaintiff will therefore be awarded the full amount requested. The EAJA award must 14 || be made by this court to plaintiff, and not to counsel. See Astrue v. Ratliff, 560 U.S. 586 (2010). 15 Accordingly, IT IS HEREBY ORDERED that fees pursuant to the EAJA are awarded to 16 || plaintiff in the amount of $12,311.91. 17 | Dated: June 14, 2021 fed) / dha MIG f- A. CAROLYNK.DELANEY 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 || 2/eece2376.eaja.no-oppo 24 25 26 27 28