United States District Court, D. Oregon
FINDINGS & RECOMMENDATION
A. RUSSO UNITED STATES MAGISTRATE JUDGE
("plaintiff) moves for an application of attorney's
fees pursuant to the Equal Access to Justice Act
("EAJA"). 28 U.S.C. § 2412 et. seq.; see
also (doc. 35). Plaintiffs counsel seek an
award of fees and costs in the amount of $16, 409.15 for 83.5
hours expended on plaintiffs underlying successful Social
Security disability appeal. Pl.'s Mot. for Fees Pursuant
to the EAJA (doc. 35) ("Pl.'s Mot.").
For the reasons that follow, plaintiffs application should be
GRANTED IN PART.
filed for disability insurance benefits ("DIB")
under Title II of the Social Security Act ("the
Act") on December 27, 2013, and on March 25, 2016, an
Administrative Law Judge ("ALJ") issued a decision
finding plaintiff not disabled. After exhausting her
administrative remedies, plaintiff sought judicial review in
this Court of the final decision of the Commissioner of the
Social Security Administration ("Commissioner"). On
July 24, 2017, plaintiff filed a 20-page opening brief
arguing the ALJ erred by: (1) rejecting her subjective
symptom statements; (2) finding she could perform her past
relevant work as it was actually or generally performed; and
(3) failing to include all of her limitations, "even as
found by the ALJ," in the dispositive hypothetical
question posed to the vocational expert ("VE").
See (doc. 17). On October 23, 2017, the
Commissioner moved to remand the case back to the ALJ for
additional proceedings, (doc. 21). On November 2,
2017, plaintiff filed a 20-page response in opposition of the
Commissioner's motion to remand, arguing instead
plaintiff was entitled to an immediate payment of benefits,
December 4, 2017, this Court issued a Findings and
Recommendation ("F&R") reversing and remanding
the Commissioner's decision and ordering an immediate
payment of benefits beginning December 22, 2014. (doc.
24). Both parties lodged written objections to the
F&R. (docs. 26-27). The district judge adopted the
F&R and entered judgment on February 6, 2018, reversing
and remanding plaintiffs appeal for an immediate payment of
benefits. See Vicki H. v. Berryhill No.
3:16-cv-02036-JR, 2017 WL 7420995 (D. Or. Dec. 4, 2017),
report and recommendation adopted, 2018 WL 770164
(D. Or. Feb. 6, 2018) (doc. 32). On May 7, 2018, plaintiff
timely moved the Court for an award of attorney's fees
(doc. 35) pursuant to the EAJA. Defendant opposes
who prevails against the United States in a civil action is
entitled, in certain circumstances, to an award of attorney
fees and costs pursuant to the EAJA. 28 U.S.C. § 2412.
Under the EAJA, a Court may award attorney's fees and
costs to a plaintiffs attorney in an action against the
United States or any agency or official of the United States
(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). A prevailing plaintiff is not entitled to
attorney's fees under EAJA when the Commissioner's
positions were substantially justified. Lewis v.
Barnhait 281 F.3d 1081, 1083 (9th Cir. 2002).
Substantial justification means "justified in substance
or in the main - that is, justified to a degree that could
satisfy a reasonable person." Thomas v.
Berryhill No. 6:16-cv-2055-JR, 2018 WL 1095554, at *1
(D. Or. Feb. 28, 2018) (citing Meier v. Colvin. 727
F.3d 867, 870 (9th Cir. 2013). "Put differently, the
government's position must have a 'reasonable basis
both in law and fact.'" Id. An award of
attorney's fees under EAJA must also be reasonable. 28
U.S.C. § 2412(d)(2)(A).
to the EAJA, plaintiff moves for $16, 409.15 in
attorney's fees. The Commissioner concedes plaintiff is
the prevailing party, and that plaintiffs hourly rates are
reasonable. The Commissioner also does not contend the
position of the United State was substantially justified.
See generally, Def's Resp. Pl.'s Mot.
Att'y Fees (doc. 37) ("Def's
Opp'n"). The sole issue before the Court is whether
the time expended by plaintiffs counsel on the case is
reasonable under the EAJA.
of Requested Fees
noted, an award of attorney's fees pursuant to the EAJA
must be reasonable. 28 U.S.C. § 2412(d)(2)(A); see
also Costa v. Comm'r of Soc. Sec. Admin.. 690 F.3d
1132, 1135 (9th Cir. 2012). A district court has an
independent duty to review the fee request to determine
reasonableness. Hensley v. Eckerhart, 461 U.S. 424,
433 (1983); Moreno v. City of Sacramento, 534 F.3d
1106, 1111 (9th Cir. 2008); Gates v. Deukmeiian, 987
F.2d 1392, 1397 (9th Cir. 1992). In deciding fee petitions, a
court must determine the reasonable number of hours expended
by counsel, and counsel's reasonable hourly rate.
Hensley, 461 U.S. at 434. The fee applicant bears
the burden of documenting the hours expended and must submit
evidence in support of the hours worked. Gates, 987
F.2d at 1397. The opposing party then has the burden of