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Gooch v. Astrue

February 9, 2009

MARGARET C. GOOCH, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin, U.S. Magistrate Judge

ORDER REGARDING PLAINTIFF'S MOTION FOR ATTORNEY'S FEES

This matter is before the Court on a petition for attorney's fees and costs under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), filed on December 19, 2008, by Plaintiff's attorney, Harvey P. Sackett.

BACKGROUND

Plaintiff commenced the instant action on November 15, 2007. On September 22, 2008, Magistrate Dennis L. Beck*fn1 issued Findings and Recommendations. On October 29, 2008, the Honorable Lawrence J. O'Neill issued an Order adopting the Findings and Recommendations wherein Plaintiff's appeal was granted, and the matter was remanded for further proceedings.

Following Plaintiff's motion for attorney's fees, seeking the sum of $6,011.24, Defendant filed its Opposition on December 24, 2008. On January 7, 2009, Plaintiff filed a reply to Defendant's opposition, wherein Plaintiff's attorney revised the requested figure to $6,303.86.

DISCUSSION

Pursuant to the EAJA, a prevailing party will be awarded reasonable attorney fees, unless the government demonstrates that its position in the litigation was "substantially justified," or that "special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). An award of attorney fees must be reasonable. Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001). "[E]xcessive, redundant, or otherwise unnecessary" hours should be excluded from a fee award, and charges that are not properly billable to a client are not properly billable to the government. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).

Initially, Mr. Sackett sought attorney's fees in the sum of $6,011.24.*fn2 More particularly, 29.35 in attorney hours,*fn3 and 9.25 in paralegal hours. Included with the motion is Mr. Sackett's declaration that includes an itemization of time spent from October 1, 2007, through to December 18, 2008.

Defendant does not dispute that Plaintiff is a prevailing party for the purposes of EAJA. Rather, Defendant opposes the motion on the grounds that the Commissioner's position was substantially justified, and therefore Plaintiff is not entitled to recovery, and further, that the fees requested are unreasonable. In the final analysis, Defendant contends that Plaintiff's attorney should be compensated no more than the total sum of $4,448.70 in EAJA fees.

Thereafter, on January 7, 2009, Plaintiff filed a Reply to the opposition, wherein Mr. Sackett revised his request for attorney's fees to include the cost of the reply, for a total of $6,303.86.*fn4

A. Substantial Justification

Plaintiff contends the Commissioner was not substantially justified in his position, and as a result, Plaintiff is entitled to an award of attorney's fees as the prevailing party. Defendant asserts the Commissioner was substantially justified.

Plaintiff specifically argues that due to the ALJ's failure to invoke vocational testimony given significant non-exertional impairment, the Commissioner's position was not substantially justified, and thus, Plaintiff should be awarded costs.

Defendant, however, argues the Commissioner was substantially justified, even in light of the ALJ's improper reliance on the Medical-Vocational Guidelines in the absence of consultation with a vocational expert, because the ...


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