United States District Court, C.D. California, Eastern Division
MEMORANDUM OPINION AND ORDER GRANTING PLANTIFF'S MOTION FOR EAJA FEES AND COSTS
DOUGLAS F. McCORMICK, Magistrate Judge.
On January 21, 2014, the Court entered an Opinion and Order reversing the Commissioner's decision denying Plaintiff's application for Social Security Disability Insurance benefits and remanding the case for further administrative proceedings. On April 21, 2014, Plaintiff filed a motion for award of attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. The Commissioner opposes Plaintiff's application for attorney's fees, arguing that the government's position was "substantially justified, " pursuant to 28 U.S.C. § 2412(d)(1)(A), precluding any award of fees. Alternatively, the Commissioner argues that the Court should reduce the number of hours.
Having considered the motion for attorney's fees, the Commissioner's opposition, and the reply, as well as the records and pleadings, the Court finds that the remand of Plaintiff's claim for a new administrative hearing constitutes a favorable decision and that the Commissioner's position was not "substantially justified." Accordingly, Plaintiff is entitled to an award of reasonable attorney's fees. In addition, the Court concludes that the number of hours for which counsel seeks reimbursement is reasonable, and therefore the Court declines to reduce the number of hours sought by counsel.
A. Plaintiff Is Entitled to Attorney's Fees as the Prevailing Party Because the Government's Position Was Not Substantially Justified
The EAJA provides that a court shall award reasonable attorney's fees, court costs and other expenses to the prevailing party "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); accord Pierce v. Underwood , 487 U.S. 552, 559 (1988); Lewis v. Barnhart , 281 F.3d 1081, 1083 (9th Cir. 2002). The term "position of the United States' means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based." 28 U.S.C. § 2412(d)(2)(D).
A position is "substantially justified" if it has a "reasonable basis both in law and fact." Pierce , 487 U.S. at 565. "Substantially justified" means "justified to a degree that could satisfy a reasonable person." Id . More recently, the Ninth Circuit has clarified that the government's position is "substantially justified" where supported by the record. Hardisty v. Astrue , 592 F.3d 1072, 1080 (9th Cir. 2010) ("The government's adverse credibility finding was substantially justified because all of the inferences upon which it rested had substance in the record."). The government has the burden of proving its positions were substantially justified. Flores v. Shalala , 49 F.3d 562, 569-70 (9th Cir. 1995). However, the mere fact that a court reversed and remanded a case for further proceedings "does not raise a presumption that [the government's] position was not substantially justified." Kali v. Bowen , 854 F.2d 329, 334 (9th Cir. 1988.)
Here, the Court's judgment remanded the case for further administrative proceedings because the Administrative Law Judge ("ALJ") erred in relying upon the testimony of the vocational expert ("VE") to find that Plaintiff could perform her past relevant work as a seamstress. Although the VE testified that Plaintiff could perform her past work given a residual functional capacity ("RFC") which limited her to only occasional overhead and above shoulder reaching with her left hand, the Dictionary of Occupational Titles ("DOT") provides that the job requires frequent reaching. The ALJ did not seek any explanation from the VE regarding this apparent conflict between the VE's testimony and the DOT. The Court concluded that, based on applicable Social Security regulations and Ninth Circuit authority, the VE's failure to do so was error. The Court further concluded that the error was not harmless.
The Commissioner has not met her burden to show that her position - and in particular the position which caused this civil action - was substantially justified. The Commissioner argued that there was no conflict between the VE's testimony and the DOT because Plaintiff could perform the job with her right hand and with reaching of her left hand at or below shoulder level. However, the Court rejected both of these arguments as unpersuasive because the DOT makes no distinction between reaching with the left or right hand and between overhead reaching and other kinds of reaching. See Dkt. 26 at 5-6.
Accordingly, the Court finds that the Commissioner has failed to show that her position was "substantially justified." Plaintiff is therefore entitled to an award of attorney's ...