The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR ATTORNEY'S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412(d) (Doc. 28)
Sengthiene Bosavanh, attorney for Plaintiff Terry Coulter, seeks an award for attorney's fees pursuant to the Equal Access for Justice Act under 28 U.S.C. § 2412(d). (Doc. 28). Defendant Michael J. Astrue, Commissioner of Social Security ("Defendant"), opposes the motion, asserting Defendant's position was substantially justified and Plaintiff seeks an excessive amount of fees. (Doc. 32). For the following reasons, the Court recommends the motion for attorney's fees be GRANTED IN PART AND DENIED IN PART.
I. Factual and Procedural History
Plaintiff initiated this action on October 15, 2010, seeking review of an administrative decision denying him benefits. (Doc. 1). On February 28, 2012, the Court issued an order remanding the matter for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 26). The Court determined the ALJ failed to set forth specific, legitimate reasons supported by substantial evidence in the record for rejecting the opinion of Plaintiff's treating physician, Dr. Park. (Doc. 22 at 14-15). 2
Specifically, the Court found the ALJ failed to "set out a detailed and thorough summary of the facts 3 and conflicting clinical evidence, stating [her] interpretation thereof,and making findings." Id. at 15 4 (citing Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)). 5
Following the entry of judgment, Plaintiff filed a timely application for EAJA fees on May 29, 2012. (Doc. 28). Defendant filed an opposition to the motion on July 12, 2012. (Doc. 32). 7
II. Legal Standards for EAJA Fees
The EAJA provides that a court shall award fees and costs incurred by a prevailing party "in 9 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).
The party seeking the award of EAJA fees has the burden of proof that fees requested 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). As a result, "[t]he fee applicant bears the burden of documenting the appropriate hours expended in the litigation, and must submit evidence in support of those hours worked." Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992); see also 28 U.S.C. § 2412(d)(1)(B) ("A party seeking an award of fees and other expenses shall . . . submit to the court an application for fees and other expenses which shows . . . the amount sought, including an itemized statement from any attorney . . . stating the actual time expended"). The court has an independent duty to review the evidence to determine the reasonableness of the hours requested in each case. Hensley, 461 U.S. at 433, 436-47.
Where documentation of the expended time is inadequate, the court may reduce the requested award. Hensley, 461 U.S. at 433, 436-47. Further, "hours that were not 'reasonably expended" should be excluded from an award, including "hours that are excessive, redundant, or otherwise unnecessary." Id. at 434. A determination of the number of hours reasonably expended is within the Court's discretion. Cunningham v. County of Los Angeles, 879 F.2d 481, 484-85 (9th Cir. 1988).
III. Discussion and Analysis
A claimant who receives a sentence four remand in a Social Security case is a prevailing party 3 for EAJA purposes. Shalala v. Schaefer, 509 U.S. 292, 301-02 (1993); Flores v. Shalala, 49 F.3d 562, 4 568 (9th Cir. 1995). Consequently, Plaintiff was the prevailing party because the Court ordered a 5 remand of the matter for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 6 26 at 2). Defendant does not dispute that Plaintiff is a prevailing party for the purposes of an award of 7 EAJA fees, but argues the position of the Commissioner was substantially justified and the fees 8 requested are excessive. (Doc. 32). 9
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). Therefore, 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 when based on violations of the Constitution, federal statute, or the agency's own regulations, is an abuse of discretion. Sampson v. Chater, 103 F.3d 918, 921 (9th Cir. 1996).
Plaintiff's case was remanded for the ALJ's failure to evaluate the medical evidence in a proper manner. (Docs. 22, 26). The ALJ gave less weight to the opinion of Plaintiff's treating physician "because it is inconsistent with objective evidence in the record . . . [and] Dr. Park is an internist and is treating the claimant for his physical impairments, not his mental impairments."
AR at 18. Defendant argues that the ALJ's actions were substantially justified because "[t]he evidence 2 that the ALJ considered and summarized in her opinion provides a factual basis for the ALJ"s 3 assessment." (Doc. 32 at 4). However, as noted by the Court, "that a treating physician was not a 4 psychiatrist 'is an improper basis for discounting the testimony of a treating physician.'" (Doc. 22 at 5 14) (quoting Sorenson v. Barnhart, 69 Fed. Appx. 864, 865 (9th Cir. 2003). In addition, the Court 6 found "the ALJ offered only her conclusions that the medical evidence contradicted the opinion of Dr. Park, without identifying and discussing its conflict with ...