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Carter v. Astrue

February 25, 2009

MILDRED CARTER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RE: MOTION FOR ATTORNEY'S FEES UNDER EQUAL ACCESS TO JUSTICE ACT (DOC. 35)

Plaintiff is represented by counsel and proceeded with an action in which the Court reviewed a final decision of the Commissioner of Social Security (Commissioner) and, by judgment entered on October 20, 2008, ordered the matter remanded pursuant to sentence four of 42 U.S.C. §405(g) for further administrative proceedings. The matter is before the Magistrate Judge pursuant to Local Rule 72-302(c)(15).

I. Introduction

The matter is currently before the Court on Plaintiff's motion for attorney's fees and costs, filed on December 19, 2008, along with several declarations of Harvey P. Sackett of Sacket and Associates, who has substituted in as Plaintiff's counsel, as well as suggested findings of fact and conclusions of law. The proposed substitution form was first submitted on October 17, 2007. The substitution form on its face reflects that it was signed by Plaintiff and her former counsel, Charles D. Oren, on October 16, 2007, but the substitution form, which included an order of substitution, was not signed by the Court until February 3, 2009, and was not filed until February 6, 2009. Defendant filed opposition to the motion on January 27, 2009. Plaintiff filed a reply on February 5, 2009, which included a supplemental declaration of Mr. Sackett and a proposed order.

Defendant's only contentions concern the reasonableness or propriety of recovering fees, and the award of fees directly to the Plaintiff's counsel as distinct from to Plaintiff herself.

II. Analysis

A. Sufficiency of the Motion

With respect to fees awarded under the EAJA, 28 U.S.C. § 2412(d)(1)(A) provides:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

It appears that the petition was filed within thirty days of final judgment in the action and thus is timely pursuant to § 2412(d)(1)(B). Further, the petition is adequate on its face because it meets the requirements of § 2412(d)(1)(B), which requires in addition to timely presentation that the petition 1) show a) that Plaintiff was the prevailing party, b) that Plaintiff was eligible to receive an award under the subsection, and c) the amount sought, including an itemized statement from any attorney or expert witness representing or appearing on behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed; and 2) allege that the position of the United States was not substantially justified.

B. Prevailing Party and Substantial Justification

In its sixty-one page ruling on the complaint, this Court determined numerous issues and remanded the case with directions that Plaintiff's subjective complaints and the RFC assessments of Plaintiff's treating physicians be credited as true; upon remand the agency was to address specific arguments by Plaintiff concerning whether or not her severe impairments met or equaled a listed impairment, whether given Plaintiff's RFC as reflected by her subjective claims and the assessments of her treating physicians, Plaintiff could perform any other work and, if not, when her disability commenced. (Doc. 28 p. 60.) In short, Plaintiff's counsel identified numerous errors that had been made by the ALJ whose decision was reviewed by the Court, and Plaintiff prevailed on multiple issues. Plaintiff was a prevailing party.

Defendant does not concede either that Plaintiff was a prevailing party or that the government's position in the underlying case was not substantially justified. However, Defendant raises no issues regarding either Plaintiff's status as a prevailing party or the government's position not being substantially justified. To show substantial justification for conduct, the Commissioner has the burden of establishing that the conduct had a reasonable basis both in law and fact based on the record of both the underlying government conduct at issue and the totality of circumstances present before and during litigation. Sampson v. Chater, 103 F.3d 918, 921 (9th Cir. 1996). A finding that an agency's position was substantially justified when it was based on violations of the Constitution, federal statute, or the agency's own regulations, constitutes an abuse of discretion. Id. In this case, the Commissioner has not established a reasonable basis in fact or in law with regard to its errors concerning Plaintiff's subjective complaints, the opinions of Plaintiff's treating physicians, or other erroneous aspects of the administrative analysis. It is concluded that the United States has not shown that its position was substantially justified.

Further, the Court is aware of no evidence or circumstance that would constitute special circumstances such that an award would be unjust. The Court finds that there are no special ...


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