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Antoinette Adkins v. Michael J. Astrue

November 2, 2011

ANTOINETTE ADKINS,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S APPLICATION FOR AN AWARD OF EQUAL ACCESS TO JUSTICE FEES

(Doc. 26)

I. INTRODUCTION

Plaintiff Antoinette Adkins ("Plaintiff") filed a complaint on November 18, 2009, seeking reversal of the Administrative Law Judge's ("ALJ") decision denying her application for Social Security disability benefits. (Doc. 1.) On March 18, 2011, the Court issued an order finding that the ALJ's decision was not supported by substantial evidence. (Doc. 23.) Specifically, the Court determined that the ALJ erred by failing to consider third-party lay testimony, and the matter was remanded to the ALJ for further findings consistent with the Court's decision. Judgment was entered in Plaintiff's favor on March 18, 2011. (Doc. 24.)

On June 16, 2011, Plaintiff filed an application for an award of fees and expenses pursuant to the Equal Access to Justice Act ("EAJA") in the amount of $8,289.97. (Doc. 26.) On July 1, 2011, the Commissioner filed an opposition to Plaintiff's request asserting that the total number of hours expended by Plaintiff's counsel was not reasonable. (Doc. 28.) For the reasons set forth below, Plaintiff's application for EAJA fees is GRANTED in the amount of $7,240.15.

II. Discussion

A. Legal Standard

Pursuant to 28 U.S.C. § 2412(d)(1)(A), claimants who successfully challenge an agency decision in a civil action are entitled to reasonable fees and other expenses:

[A] court shall award to a prevailing party other than the United States fees and other expenses . . . 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.

Any application for an award of EAJA fees and other expenses must be made within thirty days of final judgment in the action and "must include an itemized statement from any attorney representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed." 28 U.S.C. § 2412(d)(1)(B). The party submitting the application is also required to allege that the position of the United States was not substantially justified. Id. Further, the party applying for an award of EAJA fees must have an individual net worth not greater than $2,000,000 at the time the civil action was filed. Id. § 2412(d)(2)(B).

B. Plaintiff is Entitled to An Award of EAJA Fees and Other Expenses

As an initial matter, Plaintiff has met the statutory criterion to be eligible for an EAJA award of fees and other expenses. A remand pursuant to sentence four of 42 U.S.C. § 405(g) has been found to constitute a final, appealable judgment. Shalala v. Schaefer, 509 U.S. 292, 296-302 (1993). A party who obtains a sentence four remand in a social security appeal is a prevailing party for purposes of the EAJA. Schaefer, 509 U.S. at 302.

Here, Plaintiff asserts that she was a prevailing party for purposes of the appeal in this case because she was granted a sentence-four remand. (Doc. 26-1, 2:15-19.) The Commissioner does not dispute this. Further, Plaintiff asserts that her net worth as an individual was not more than $2,000,000 at the time the civil action was filed pursuant to 28 U.S.C. § 2412(d)(1)(D)(2)(B), which is also undisputed by the Commissioner. (Doc. 26-1, 2:20-22.) Additionally, Plaintiff has asserted, and the Commissioner does not dispute, that the Commissioner's position was not substantially justified. (Doc. 26-1, 3:15-4:10.) Finally, Plaintiff's application was filed within 30 days of the expiration of the 60-day appellate period from the March 18, 2011, final judgment and thus it was timely under Section 2412(d)(1)(B) and (d)(2)(G). Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991). The Court finds that Plaintiff is entitled to an award of her reasonable attorney's fees and expenses.

C. Reasonableness of the Fees

The Court must determine what amount constitutes a reasonable award of attorney's fees. See 28 U.S.C. § 2412(d)(2)(A); Gates v. Deukmejian, 987 F.2d 1392, 1401 (9th Cir. 1992) (district court has an independent duty to review plaintiff's fee request to determine its reasonableness). "The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Blum v. Stenson, 465 U.S. 886, 897 (1984). "The [Court] must determine not just the actual hours expended by counsel, but which of those hours were reasonably expended in the litigation." Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir. 1983). "'Hours that are not properly billed to one's client are not properly billed to one's adversary pursuant to statutory authority.'" Hensley, 461 U.S. at 434 (quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980) (en banc)). The applicant bears the burden of demonstrating the reasonableness of the fee request. Blum, 465 U.S. at 897.

1. Hourly Rates

Plaintiff requests $172.24 per hour for work performed by her counsel in 2009 and $175.06 for work performed by her counsel in 2010, which are the applicable statutory maximum hourly rates under EAJA, adjusted for increases in the cost of living, as published by the Ninth Circuit on its website pursuant to 28 U.S.C. ยง 2412(d)(2)(A), Thangaraja v. Gonzales, 428 F.3d 870, 876-77 (9th Cir. 2005), and Ninth Circuit Rule 39-1.6. The Commissioner does not oppose these hourly rates. Further, these rates have been considered reasonable in other social security cases in this district, see, e.g., Roberts v. ...


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