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Vicki H. v. Berryhill

United States District Court, D. Oregon

June 29, 2018

VICKI H., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          FINDINGS & RECOMMENDATION

          JOLIE A. RUSSO UNITED STATES MAGISTRATE JUDGE

         Vicki H.[1] ("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.

         BACKGROUND

         Plaintiff 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, (doc. 22).

         On 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), [2] 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 the award.

         STANDARD OF REVIEW

         A party 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 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). 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).

         DISCUSSION

         Pursuant 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.

         Reasonableness of Requested Fees

         As 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 rebuttal ...


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