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Anita Brumley v. Commissioner of Social Security

January 7, 2013

ANITA BRUMLEY,
PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS GRANTING IN PART PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412(d) (Doc. 24)

Sengthiene Bosavanh, attorney for Plaintiff Anita Brumley, seeks an award for attorney's fees and costs pursuant to the Equal Access for Justice Act under 28 U.S.C. § 2412(d). (Doc. 24). The Commissioner of Social Security ("Defendant") opposes the motion, asserting Defendant's position was substantially justified and Plaintiff seeks an excessive amount of fees. (Doc. 25). For the following reasons, the Court recommends the motion be GRANTED IN PART.

I. Factual and Procedural History

Plaintiff initiated this action on February 14, 2011, seeking review of an administrative decision denying benefits. (Doc. 1). The Court determined the ALJ failed to identify clear and convincing reasons, supported by substantial evidence in the record, for rejecting Plaintiff's credibility, and recommendations the matter be remanded for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g) on June 20, 2012. (Doc. 20). The recommendation was adopted on July 70, 2012 (Doc. 22), and judgment was entered in favor of Plaintiff (Doc. 23).

Following the entry of judgment, Plaintiff filed a timely application for EAJA fees on October 29, 2012. (Doc. 24). Defendant filed an opposition to the motion on November 30, 2012. (Doc. 25).

Plaintiff did not file a reply. 4

II. Legal Standards for EAJA Fees

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 7 the United States . . . unless the court finds that the position of the United States was substantially 8 justified or that special circumstances make an award unjust." 28 U.S.C. § 2412 (d)(1)(A). A party 9 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, 436-37. A finding of the number of hours reasonably expended is a matter of 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 for EAJA purposes. Shalala v. Schaefer, 509 U.S. 292, 301-02 (1993); Flores v. Shalala, 49 F.3d 562, 568 (9th Cir. 1995). Plaintiff was the prevailing party because the Court ordered a remand of the matter for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 22 at 4). Defendant does not dispute that Plaintiff is a prevailing party for the purposes of an award of EAJA fees, but argues the position of the Commissioner was substantially justified and the fees requested are 2 excessive. (Doc. 25). 3

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, 6 618 (9th Cir. 2005). The Supreme Court has defined "substantially justified" as "justified to a degree 7 that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565 (1988). In addition, 8

"[a] substantially justified position must have a reasonable basis in both law and fact." Gutierrez v. 9 Barnhart, 274 ...


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