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Lewis v. Berryhill

United States District Court, D. Oregon

April 14, 2017

LISA LEWIS, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner, Social Security Administration, Defendant.

          NANCY J. MERSEROW Attorney for Plaintiff

          BILLY J. WILLIAMS United States Attorney JANICE E. HEBERT Assistant United States Attorney

          DAVID MORADO Regional Chief Counsel GERALD J. HILL Special Assistant United States Attorney Social Security Administration Attorneys for Defendant

          OPINION AND ORDER

          ANNA J. BROWN United States District Judge

         This 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.

         On 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.

         I. Standards

         A. Award of Attorneys' Fees Under EAJA

         Under 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).

         A “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 omitted).

         A 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 Cir. 1988)).

         B. Calculating the Amount of ...


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