The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S AMENDED MOTION FOR ATTORNEY'S FEES PURSUANT TO EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412d
Plaintiff sought judicial review of a final decision of the Commissioner of Social Security denying her application for benefits. On November 10, 2010, Plaintiff filed an amended motion for attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). (Doc. 24). For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Plaintiff's motion for EAJA fees.
On July 28, 2010, the Court issued a decision and order directing remand for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 20). On October 20, 2010, Plaintiff filed a motion for attorney's fees pursuant to the EAJA. (Doc. 22). On November 10, Plaintiff filed an amended motion seeking an award based upon 8.5 hours of attorney work completed in 2009 and 18.2 of work in 2010. (Doc. 24 at 3 and Attachment). In addition, Plaintiff requests that the Court award the fees directly to her attorney. Id. at 4. Defendant filed a brief in opposition to the motion on November 19, 2010 (Doc. 25), to which Plaintiff replied on January 3, 2011 (Doc. 28).
The EAJA provides that a court shall award fees and costs incurred by a prevailing party "in any civil action . . . including proceedings for judicial review of agency action, brought by or 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). A party eligible to receive an award of attorney fees under the EAJA must be the prevailing party who received a final judgment in the civil action. 28 U.S.C. § 2412(d)(2)(H).
A claimant who receives a sentence four remand in a Social Security case is a prevailing party for EAJA purposes. Shalala v. Shaefer, 509 U.S. 292, 301-02 (1993); Flores v. Shalala, 49 F.3d 562, 568 (9th Cir. 1995).
Recoverable fees and expenses include reasonable expenses of expert witnesses; reasonable costs of any study, analysis, report, test, or project found by the court to be necessary for the prevailing party's case; and reasonable attorney fees. 28 U.S.C. § 2412(d)(2)(A). Attorney fees may not be awarded in excess of $125 per hour, unless the court determines a higher fee is justified by an increase in the cost of living, or a special factor exists. Id. Further, a party may recover the filing fee for the action. 28 U.S.C. § 2412(a)(2). The prevailing party has the burden of proof that fees awarded under the EAJA are reasonable. See Hensley v. Eckerhart, 461 U.S. 424, 434, 437 (1983); see also Atkins v. Apfel, 154 F.3d 988 (9th Cir. 1998) (specifically applying these principles to fee requests under the EAJA).
III. Discussion and Analysis
Defendant does not dispute that Plaintiff is a prevailing party for the purposes of an EAJA fee award, or the number of hours for which Plaintiff seeks to recover attorney fees. Defendant argues in opposition to Plaintiff's fee request that the government's position in this case was substantially justified at both the hearing level with the administrative law judge and the argument presented in appeal. (Doc. 25 at 2-6).
A. Defendant's position was not substantially justified.
The burden of proof that the position was substantially justified rests on the government. Scarborough v. Principi, 54 U.S. 401, 403 (2004); Gonzales v. Free Speech Coalition, 408 F.3d 613, 618 (9th Cir. 2005). The Supreme Court has defined "substantially justified" as "justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565 (1988). In addition, "[a] substantially justified position must have a reasonable basis in both law and fact." Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001).
Establishing that a position was substantially justified is a two-step process. 28 U.S.C. § 2412(d)(2)(D). First, Defendant must show "the action or failure to act by the agency" was substantially justified. Id. Second, Defendant must show the position taken in the civil action was substantially justified. Id. The inquiry into whether or not the government had a substantial justification must be found on both inquiries. Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1998). Here, both the ALJ's decision and the Commissioner's arguments to this Court in defense of the ALJ's decision must have been substantially justified. A finding that a position was substantially justified ...