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

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SANDRA SALTZMAN, No. 2:18-CV-2215-DMC 12 Plaintiff, 13 v. ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 18 Plaintiff, who is proceeding with retained counsel, brought this action for judicial 19 review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). 20 Final judgement was entered on December 6, 2019. See ECF No. 21. Pending before the Court 21 is Plaintiff’s unopposed motion for an award of attorney’s fees and costs in the amount of 22 $10,160.04 under the Equal Access to Justice Act (EAJA). See ECF No. 22. 23 Because this court issued a remand pursuant to sentence four of 42 U.S.C. 24 § 405(g), plaintiff is a prevailing party for EAJA purposes. See Flores v. Shalala, 42 F.3d 562 25 (9th Cir. 1995). Under the EAJA, an award of reasonable attorney’s fees is appropriate unless the 26 Commissioner’s position was “substantially justified” on law and fact with respect to the issue(s) 27 on which the court based its remand. 28 U.S.C. § 2412(d)(1)(A); see Flores, 42 F.3d at 569. No 28 presumption arises that the Commissioner’s position was not substantially justified simply 1 because the Commissioner did not prevail. See Kali v. Bowen, 854 F.2d 329 (9th Cir. 1988). 2 The Commissioner’s position is substantially justified if there is a genuine dispute. See Pierce v. 3 Underwood, 487 U.S. 552 (1988). The burden of establishing substantial justification is on the 4 government. See Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001). 5 In determining substantial justification, the court reviews both the underlying 6 governmental action being defended in the litigation and the positions taken by the government 7 in the litigation itself. See Barry v. Bowen, 825 F.2d 1324, 1331 (9th Cir. 1987), disapproved on 8 other grounds, In re Slimick, 928 F.2d 304 (9th Cir. 1990). For the government’s position to be 9 considered substantially justified, however, it must establish substantial justification for both the 10 position it took at the agency level as well as the position it took in the district court. See Kali v. 11 Bowen, 854 F.2d 329, 332 (9th Cir. 1998). Where, however, the underlying government action 12 was not substantially justified, it is unnecessary to determine whether the government’s litigation 13 position was substantially justified. See Andrew v. Bowen, 837 F.2d 875, 880 (9th Cir. 1988). 14 “The nature and scope of the ALJ’s legal errors are material in determining whether the 15 Commissioner’s decision to defend them was substantially justified.” Sampson v. Chater, 103 16 F.3d 918, 922 (9th Cir. 1996) (citing Flores, 49 F.3d at 570). If there is no reasonable basis in law 17 and fact for the government’s position with respect to the issues on which the court based its 18 determination, the government’s position is not “substantially justified” and an award of EAJA 19 fees is warranted. See Flores, 42 F.3d at 569-71. A strong indication the government’s position 20 was not substantially justified is a court’s “holding that the agency’s decision . . . was 21 unsupported by substantial evidence. . . .” Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). 22 Under the EAJA, the court may award “reasonable attorney’s fees,” which are set 23 at the market rate. See 28 U.S.C. § 2412(d)(2)(A). The party seeking an award under the EAJA 24 bears the burden of establishing the fees requested are reasonable. See Hensley v. Eckerhart, 461 25 U.S. 424, 434 (1983); Atkins v. Apfel, 154 F.3d 988 (9th Cir. 1998); see also 28 U.S.C. § 26 2412(d)(1)(B) (“A party seeking an award of fees and other expenses shall . . . submit to the court 27 an application for fees and other expenses which shows . . . the amount sought, including an 28 itemized statement from any attorney . . . stating the actual time expended”). The court has an 1 | independent duty to review the evidence and determine the reasonableness of the fees requested. 2 | See Hensley, 461 U.S. at 433, 436-47. Finally, fees awarded under the EAJA are payable directly 3 | to the client, not counsel. See Astrue v. Ratliff, 130 $.Ct. 2521 (2010). 4 As explained above, the burden to show substantial justification is on the 5 | Commissioner. Here, the Commissioner has not filed any opposition to Plaintiff's motion for 6 | EAJA fees and costs and has thus failed to meet the Commissioner’s burden. The Court, 7 | therefore, finds that the Commissioner’s position was not substantially justified and will conduct 8 || an independent review for reasonableness of fees and costs requested. The Court has reviewed 9 | counsel’s time logs for this case and finds the fees requested to be reasonable. Specifically, 10 | counsel expended a total of 49.93 hours on the case which has an administrative record consisting 11 | of 1,413 pages. Counsel filed a 23-page brief with this Court in support of Plaintiff's contentions. 12 | Counsel charges a rate of $203.03 per hour. The hours spent and the rate charged are reasonable 13 | in light of counsel’s expertise, the size, of the record, and the length of the brief filed. The Court 14 | also finds that costs requested in the amount of $22.86 associated with service of process are also 15 || reasonable. 16 Accordingly, IT IS HEREBY ordered that: 17 1. Plaintiff's unopposed motion for an award of fees and costs under the 18 | EAJA, ECF No. 22, is granted; and 19 2. Plaintiff is awarded a total of $10,160.04 in fees and costs, payable to 20 | Plaintiff. 21 22 || Dated: September 1, 2021 Sx