(SS)Fryar v. Commissioner of Social Security ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES BINGLEY FRYAR, Case No. 1:21-cv-00918-CDB (SS) 12 Plaintiff, ORDER ON STIPULATION FOR AWARD OF ATTORNEY FEES PURSUANT TO THE 13 v. EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412(d) 14 COMMISSIONER OF SOCIAL SECURITY, (Doc. 23) 15 Defendant. 16 17 Pending before the Court is the parties’ stipulated motion for award of attorney’s fees 18 pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (Doc. 23). The 19 parties agree to an award of attorney’s fees to counsel for Plaintiff Charles Bingley Fryar 20 (“Plaintiff”), Melissa Newel, in the amount of $10,618.20 pursuant to the EAJA, 28 U.S.C. § 21 2412(d). Id. 22 On September 25, 2023, the Court issued an order remanding this action for further 23 proceedings under sentence four 42 U.S.C. § 405(g). (Doc. 21). The Court found the ALJ failed 24 to provide clear and convincing reasons to discredit Plaintiff’s pre-surgery statements. Id. at 22- 25 23. The Court determined a remand was warranted for the ALJ to determine whether Plaintiff 26 was disabled for a closed period beginning September 1, 2017. Id. at 23. Thereafter, judgment 27 was entered the same day. (Doc. 22). On December 13, 2023, Plaintiff filed the pending 1 Plaintiff requests an award of attorney fees as the prevailing party. Id.; see Shalala v. 2 Schaefer, 509 U.S. 292, 300-02 (1993) (concluding that a party who prevails in a sentence-four 3 remand order under 42 U.S.C. § 405(g) is a prevailing party). Plaintiff’s request is timely. Van 4 v. Barnhart, 483 F.3d 600, 607 (9th Cir. 2007). The Commissioner has not opposed the requested 5 relief. (Doc. 23). 6 The EAJA provides for an award of attorney fees to private litigants who both prevail in 7 civil actions (other than tort) against the United States and timely file a petition for fees. 28 8 U.S.C. § 2412(d)(1)(A). Under the EAJA, a court shall award attorney fees to the prevailing 9 party unless it finds the government’s position was “substantially justified or that special 10 circumstances make such an award unjust.” Id. Here, the Court found the government’s position 11 was not substantially justified and a remand was warranted for the ALJ to determine whether 12 Plaintiff was disabled for a closed period beginning September 1, 2017. (Doc. 21). The Court 13 finds there are no special circumstances that would make an award unjust. 14 Plaintiff requests an award of $10,618.20 in EAJA fees. (Doc. 23). The Ninth Circuit 15 maintains a list of the statutory maximum hourly rates authorized by the EAJA, adjusted for 16 increases in the cost of living, on its website. See Thangaraja v. Gonzales, 428 F.3d 870, 876- 17 77 (9th Cir. 2005). Even assuming Plaintiff’s counsel seeks the published maximum hourly rate 18 in 2022 ($234.95),1 the requested award would amount to approximately 45 hours of attorney 19 time (not accounting for any paralegal time expended). The Court has reviewed the docket and 20 finds this amount reasonable and commensurate with the number of hours an attorney reasonably 21 would need to have spent working on this case. Specifically, counsel for Plaintiff reviewed a 22 voluminous certified administrative record in this case (1,039 pages), prepared a motion for 23 summary judgment raising two issues for review, reviewed and researched Defendant’s 24 opposition, and prepared and filed a reply brief. (Docs. 10, 17-19). With respect to the results 25 obtained, Plaintiff’s counsel obtained a favorable judgment remanding the case for further 26 administrative proceedings. (Docs. 21-22). 27 1 Statutory Maximum Rates Under the Equal Access to Justice, available at https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ (last visited December 14, 1 EAJA fees, expenses, and costs are subject to any offsets allowed under the Treasury Offset 2 | Program (“TOP”), as discussed in Astrue v. Ratliff, 560 U.S. 586 (2010). If the Commissioner 3 | determines upon effectuation of this order that Plaintiff's EAJA fees are not subject to any offset 4 | allowed under the TOP, the fees shall be delivered or otherwise transmitted to Plaintiffs counsel. 5 Accordingly, it is HEREBY ORDERED: 6 1. Plaintiffs stipulated request for attorney’s fees and expenses pursuant to the EAJA (Doc. 7 18) is GRANTED; 8 2. The Commissioner is directed to pay to Plaintiff as the prevailing party attorney fees in 9 the amount of $10,618.20. Unless any offsets are applied under TOP, the government 10 shall make payment of the fees to Plaintiff's counsel Melissa Newel in accordance with 11 Plaintiff's assignment of fees and subject to the terms of the stipulation. !2 Tr Is SO ORDERED. 13 | } ) Bo Dated: _ December 15, 2023 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28