The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
Plaintiff, who is proceeding with retained counsel, brought this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Judgment was entered on February 27, 2008, remanding this matter to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings. Pending before the court is plaintiff's motion for attorney fees pursuant to the Equal Access to Justice Act (hereinafter EAJA), 28 U.S.C. § 2412(d) (Doc. 27).
The Social Security Administration originally denied plaintiff's claim for Social Security Disability and/or Supplemental Security Income benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401 et seq. and 1381 et seq. His request for reconsideration was also denied. A hearing was held before an Administrative Law Judge (ALJ), who also denied plaintiff's disability benefits. This action followed the ALJ's decision.
The EAJA authorizes an award of "fees and other expenses" to a prevailing party in a case against the United States "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A); see also Flores v. Shalala, 49 F.3d 562, 568-69 (9th Cir. 1995). The burden of establishing substantial justification is on the government. Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001). In Pierce v. Underwood, 487 U.S. 552 (1988), the Supreme Court defined "substantial justification" as:
'justified in substance or in the main' -- that is, justified to a degree that could satisfy a reasonable person. That is no different from the 'reasonable basis in both law and fact' formulation adopted by the Ninth Circuit and the vast majority of other Courts of Appeals that have addressed this issue.
Id. at 565. In other words, the government's position must have had a reasonable basis both in law and fact. See id. A position does not have to be correct to be substantially justified. Id. at 566 n.2; see also Russell v. Sullivan, 930 F.2d 1443, 1445 (9th Cir. 1991), receded from on other grounds, Sorenson v. Mink, 239 F.3d 1140 (9th Cir. 2001); Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002).
In determining substantial justification, the court reviews both the underlying governmental action being defended in the litigation and the positions taken by the government in the litigation itself. See Barry v. Bowen, 825 F.2d 1324, 1331 (9th Cir. 1987), disapproved on other grounds, In re Slimick, 928 F.2d 304 (9th Cir. 1990). Where the underlying government action was not substantially justified, it is unnecessary to determine whether the government's litigation position was substantially justified. See Andrew v. Bowen, 837 F.2d 875, 880 (9th Cir. 1988). "The nature and scope of the ALJ's legal errors are material in determining whether the Commissioner's decision to defend them was substantially justified." Sampson v. Chater, 103 F.3d 918, 922 (9th Cir. 1996) (citing Flores v. Shalala, 49 F.3d 562, 570 (9th Cir. 1995)).
In this case the Commissioner claims no EAJA attorney fees should be awarded to plaintiff because the government's position was reasonably justified. He argues that his factual position, that plaintiff failed to present evidence showing that he was treated for sleep apnea and that his chronic renal insufficiency (CRI) was a severe impairment, was substantially justified. While this may be true, the court has expressed no opinion as to whether plaintiff was entitled to a remand based on a factual analysis. The court's decision was based on a legal, not factual, error. In order for the defendant's position to be substantially justified, his position must have had a reasonable basis both in law and fact.
The ALJ was required to consider the combined effect of all of plaintiff's impairments on his ability to function, without regard to whether each impairment alone would have been sufficiently severe. See Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996). The court found the ALJ's failure to address two of plaintiff's alleged impairments, sleep apnea and CRI, constituted reversible legal error. The defendant's position that the ALJ properly considered all of plaintiff's impairments, and found that they were not "severe" impairments, did not address the requirement that the ALJ consider the combination of all of plaintiff's impairments, and develop the record fully. While there may have been a sufficient factual basis for the ALJ to find these two impairments were not severe, either singularly or in combination with plaintiff's other impairments, the problem was that he failed to address them in his decision. The court found the ALJ should have addressed the evidence, or lack there of, regarding these impairments, and should have more fully developed the record in some manner prior to rendering his decision. The error was in the ALJ's failure to address the impairments, not in a factual analysis of them.*fn1 The defendant's position that the ALJ properly address all of plaintiff's impairments was not substantially justified.
In opposition to the motion for EAJA attorney fees, defendant does not argue that his position had a reasonable basis in law as well as fact, and the court finds it did not. As the government has not met its burden to show its position was substantially justified, the court finds the award of EAJA attorney fees is appropriate. The question then becomes whether the amount of attorney fees the plaintiff is claiming is reasonable.
"This court has discretion in determining the amount of a fee award, including the reasonableness of the hours claimed by the prevailing part." Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992) (citing Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)); see also INS v. Jean, 496 U.S. 154 (1990) (the district court's determination of what fee is reasonable under the EAJA is the same as the standard in Hensley). The EAJA provides that "attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor... justifies a higher fee." 28 U.S.C. § 2412(d)(2)(A). The rates submitted by plaintiff's counsel are adjusted to account for cost of living increases--a rate of $161.85 per hour for services provided in 2006, and $163.75 per hour for services provided in 2007-2008. To support these adjustments, plaintiff's counsel cites the United States Department of Labor's Consumer Price Index, which according to the Ninth Circuit, constitutes proper proof of the increased cost of living since the EAJA's enactment and justifies an award of attorney's fees greater than the statutory cap. See Sorenson v. Mink, 239 F.3d 1140, 1148 (9th Cir. 2001). The Commissioner does not challenge the hourly rates proposed by plaintiff's counsel. The court's own review of the plaintiff's evidence indicates that the figures are accurate. Accordingly, the court finds that the hourly rates proposed by plaintiff's counsel are reasonable.
Defendant argues that plaintiff has not met his burden to show that all of the fees he seeks are reasonable. Plaintiff's counsel requests a total of $6,922.25 for 42.3 hours of work.*fn2 Defendant specifically takes issue with the 36.3 hours plaintiff's counsel spent preparing the complaint and motion for summary judgment in this routine ...