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Hopper v. Colvin

United States District Court, D. Oregon

April 30, 2015

ARTHUR HOPPER, Plaintiff,
v.
CAROLYN COLVIN, Commissioner of Social Security, Defendant.

Rory Linerud, LINERUD LAW FIRM, Salem, OR, Attorney for Plaintiff.

S. Amanda Marshall, United States Attorney, District of Oregon Ronald K. Silver, Assistant United States Attorney, U.S. ATTORNEY'S OFFICE, DISTRICT OF OREGON, Portland, OR.

Lars J. Nelson, Special Assistant United States Attorney SOCIAL SECURITY ADMINISTRATION Office of the General Counsel Seattle, WA Attorneys for Defendant.

ORDER

MARCO A. HERNNDEZ, District Judge.

Plaintiff Arthur Hopper's counsel seeks an award of $8, 715.07 in fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, and costs in the amount of $25.24. Defendant opposes the fee request, arguing that the government's position was substantially justified and the requested fees are unreasonable. The Court grants the application for fees and costs, subject to adjustment to reflect the correct CPI-U rate.

BACKGROUND

Plaintiff brought this action seeking review of the Commissioner's final decision to deny him disability insurance benefits. Plaintiff argued that the ALJ's decision was not supported by substantial evidence in the record. Plaintiff contended that the ALJ erred in three ways: (1) that she determined his residual functional capacity without substantial evidence to support the included limitations; (2) that she posed an incomplete and ambiguous hypothetical to the Vocational Expert (VE); and (3) that she relied on testimony from the VE that contradicted the Dictionary of Occupational Titles (DOT) without soliciting an explanation for that contradiction from the VE.

In a November 14, 2014, Opinion & Order, this Court reversed the Commissioner's decision because the ALJ erred by relying on the VE's testimony and, therefore, did not meet the burden of proof to demonstrate that there are jobs available in sufficient numbers that Plaintiff can perform. The case was remanded for additional proceedings related to the issue of obtaining VE testimony that is not in conflict with the DOT. Judgment was entered on November 18, 2014.

STANDARDS

"For the court to award attorney's fees and costs pursuant to the EAJA, it must be shown that (1) the plaintiff is the prevailing party; (2) the government has not met its burden of showing that its positions were substantially justified or that special circumstances make an award unjust; and (3) the requested attorney's fees and costs are reasonable." Perez-Arellano v. Smith, 279 F.3d 791, 793 (9th Cir. 2002) (citing 28 U.S.C. § 2412(d)(1)(A)). Here, there is no dispute that Plaintiff was the prevailing party.

DISCUSSION

Defendant argues that the government's position was substantially justified and the requested attorney's fees are unreasonable. The Court disagrees, except to correct the CPI-U rate used to calculate the proper award.

I. Substantial Justification

The burden is on the Commissioner to show that her position was substantially justified. Hardisty v. Astrue, 592 F.3d 1072, 1076 n. 2 (9th Cir. 2010). Although Congress did not intend fee shifting under EAJA to be mandatory, "EAJA creates a presumption that fees will be awarded to prevailing parties." Flores v. Shalala, 49 F.3d 562, 567 (9th Cir. 1995). However, the "government's failure to prevail does not raise a presumption that its position was not substantially justified." Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988). To establish that its position was substantially justified, the government must show that the underlying ...


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