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Stsiapan Latyshevich v. Michael J. Astrue

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


May 27, 2011

STSIAPAN LATYSHEVICH, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Pending before the court is plaintiff's application for an award of attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1). Plaintiff seeks attorney's fees for 11.75 hours at $150/hour for work done in 2009 and 2010, for a total amount of $1,762.50. Plaintiff seeks a cost of living adjustment ("COLA") to the statutory cap on attorney's fees of $125/hour. The Commissioner has filed an opposition, objecting only to payment of the fees to plaintiff's counsel rather than to plaintiff.

The EAJA provides that the prevailing party in a civil action against the United States may apply for an order for attorneys' fees and expenses within thirty days of final judgment in the action. An applicant for Social Security benefits receiving a remand under sentence four of 42 U.S.C. § 405(g) is a prevailing party, regardless of whether the applicant later succeeds in obtaining the requested benefits. Shalala v. Schaefer, 509 U.S. 292 (1993). In this case, the matter was remanded under sentence four pursuant to the order of the court for further findings. See Order filed August 9, 2010. Plaintiff thus is entitled to an award of fees under the EAJA. The court must allow the fee award unless it finds that the position of the United States was substantially justified. Flores v. Shalala, 49 F.3d 562, 568-69 (9th Cir. 1995).

Having no opposition from the Commissioner on the issue of substantial justification, the court finds that the requested fees are reasonable and that plaintiff is entitled to the amount requested. Despite any fee agreement to the contrary, the EAJA award must be made by this court to plaintiff, and not to counsel. See Astrue v. Ratliff, __ U.S. __, 130 S.Ct. 2521 (2010).

Accordingly, IT IS HEREBY ORDERED that plaintiff's September 13, 2010, request for EAJA fees is granted. Plaintiff is awarded $1,762.50 in attorney's fees. Said fees shall be made payable to plaintiff.

20110527

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