United States District Court, D. Oregon
J. MERSEROW Attorney for Plaintiff
J. WILLIAMS United States Attorney JANICE E. HEBERT Assistant
United States Attorney
MORADO Regional Chief Counsel GERALD J. HILL Special
Assistant United States Attorney Social Security
Administration Attorneys for Defendant
OPINION AND ORDER
J. BROWN United States District Judge
matter comes before the Court on Plaintiff's Motion (#19)
for Attorney Fees in addition to $19.00 in costs and
expenses. On January 19, 2017, the Court issued an Opinion
and Order (#17) in which it found the Administrative Law
Judge (ALJ) erred when he failed to address the opinion of
Plaintiff's treating psychologist, Neal Musselman, D.O.
The Court, however, affirmed the ALJ's decision in other
respects. Accordingly, the Court reversed the ALJ's
decision and remanded this matter to the Commissioner to
address Dr. Musselman's opinion and to reassess
Plaintiff's residual functional capacity in light of Dr.
Musselman's opinion. The Court also entered a Judgment
(#18) on January 19, 2017.
February 16, 2017, Plaintiff filed her Motion (#19) for
Attorney Fees in which Plaintiff seeks $10, 428.24 in
attorneys' fees and $19.00 in costs and expenses.
Defendant opposes Plaintiff's Motion on the bases that
(1) Defendant's position with respect to Dr.
Musselman's opinion was substantially justified and (2)
Plaintiff's requested fee award is unreasonable.
Award of Attorneys' Fees Under EAJA
the Equal Access to Justice Act (EAJA), 28 U.S.C. §
2412, the Court may award attorneys' fees and costs to a
plaintiff's attorney in an action against the United
States or any agency or official of the United States if
(1) the plaintiff is the prevailing party, (2) the government
has not met its burden to show 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.
28 U.S.C. § 2412(d)(1)(A). See also Perez-Arellano
v. Smith, 279 F.3d 791, 792 (9th Cir. 2002).
“prevailing party” is one who has been awarded
relief by the court on the merits of at least some of his
claims. Hanrahan v. Hampton, 446 U.S. 754, 758
(1980). “Enforceable judgments and court-ordered
consent decrees create ‘the material alteration of the
legal relationship of the parties' necessary to permit an
award of attorney's fees.” Buckhannon Bd. and
Care Home, Inc. v. W.Va. Dep't of Health and Human
Res., 532 U.S. 598, 604 (2001)(internal citation
prevailing plaintiff is not entitled to attorneys' fees
under EAJA when the Commissioner's positions were
substantially justified. Lewis v. Barnhart, 281 F.3d
1081, 1083 (9th Cir. 2002). The Commissioner's positions
are substantially justified if they are reasonably based in
both law and fact. Id. (citing Pierce v.
Underwood, 487 U.S. 552, 566 n.2 (1988)). The
Commissioner's failure to prevail on the merits of his
positions does not raise a presumption of unreasonableness.
U.S. v. Marolf, 277 F.3d 1156, 1162 (9th Cir.
2002)(citing Kali v. Bowen, 854 F.2d 329, 332 (9th
Calculating the Amount of ...