The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
REGARDING PETITION FOR FEES
This matter is before the Court on an application for attorneys' fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), filed on March 27, 2012, by Plaintiff Rena Faye Perez ("Plaintiff"). Defendant filed an opposition on April 5, 2011, arguing that the Government's position was substantially justified and that the fee requested is unreasonable. Plaintiff did not file a reply.*fn1
The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Magistrate Judge for findings and recommendations to the District Court.
Plaintiff filed the instant Complaint challenging the denial of benefits on May 25, 2010.
On March 3, 2011, the Court issued Findings and Recommendation that the appeal be denied. However, on December 27, 2011, the Court declined to adopt the Findings and Recommendation in full and remanded the action. While the Court adopted the findings with respect to the credibility issue, it declined to adopt the findings with respect to the evaluation of the opinions of the medical providers. The Court remanded the action with instructions to conduct further proceedings to evaluate and address the opinions of Drs. Halappa and Azevedo.
The Court entered judgment in Plaintiff's favor on December 27, 2011.
By this motion, Plaintiff seeks a total of $11,950.00 in attorneys' fees for 67.4 hours of attorney time.
Under the EAJA, a prevailing party will be awarded reasonable attorney fees, unless the government demonstrates that its position in the litigation was "substantially justified," or that "special circumstances make an award unjust." 28 U.S.C. § 2412 (d)(1)(A). An award of attorney fees must be reasonable. Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001). "[E]xcessive, redundant, or otherwise unnecessary" hours should be excluded from a fee award, and charges that are not properly billable to a client are not properly billable to the government. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). A court has wide latitude in determining the number of hours reasonably expended. Cunningham v. County of Los Angeles, 879 F.2d 481, 484 (9th Cir. 1988).
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. Hardisty v. Astrue, 529 F.3d 1072 (9th Cir. 2010); Sampson v. Chater, 103 F.3d 918, 921 (9th Cir. 1996). The Commissioner is substantially justified if his position met "the traditional reasonableness standard-that is 'justified in substance or in the main,' or 'to a degree that could satisfy a reasonable person.'" Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002) (internal citations omitted). The Supreme Court has explained that "a position can be justified even though it is not correct, and we believe it can be substantially ... justified ... if it has a reasonable basis in law and fact." Id. (citing Pierce v. Underwood, 487 U.S. 552, 566 n. 2 (1988)). The Commissioner's position must be substantially justified "with respect to the issue on which the court based its remand." Flores v. Shalala, 49 F.3d 562, 569 (9th Cir. 1995).
In the underlying litigation, the Magistrate Judge found that the ALJ properly rejected the opinions of Dr. Halappa and Dr. Azevedo. As to Dr. Halappa, the Court agreed with the ALJ's conclusion that his extreme restrictions were contrary to the other opinions and not supported by the medical record. As to Dr. Azevedo, the Court noted that the ALJ actually adopted many of Dr. Azevedo's findings in the RFC, and that his own examination rendered the remaining limitations questionable. The Court also found that although the ALJ did not address Dr. Azevedo's anxiety diagnosis, it did not affect the threshold step two finding because the ALJ was required to consider all limitations at the remaining steps of the sequential analysis.
The District Judge, however, disagreed with this analysis. The Court declined to adopt the Magistrate Judge's findings regarding the ALJ's analysis of the opinions of Dr. Halappa and Dr. Azevedo, and the remand was based on this issue. The Court found that the ALJ did not adequately explain how their opinions were unsupported or inconsistent with the medical record. It also found that although discrediting Dr. Halappa's opinion because it was based on Plaintiff's subjective complaints would be proper, the ALJ did not invoke this rationale. Finally, the Court stated that the ALJ's failure to discuss Plaintiff's anxiety and/or panic disorders "would seem" to affect several steps of the evaluation process.
Therefore, Defendant supported a position that was accepted by the Magistrate Judge, but not ultimately accepted by the Court. Defendant argues that where reasonable minds can differ, his position was substantially justified. The Court agrees. Indeed, the reviewing judges reached differing conclusions, demonstrating that the record was open to reasonable interpretation. "Obviously, the fact that one other court agreed or disagreed with the Government does not establish whether its position was substantially justified. Conceivably, the Government could take a position that is not substantially justified, yet win; even more likely, it could take a position that is substantially justified, yet lose. Nevertheless, a string of losses can be indicative; and even more so a string ...