United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO GRANT IN PART
PLAINTIFF’S MOTION FOR ATTORNEY’S FEES UNDER THE
EQUAL ACCESS TO JUSTICE ACT (DOC. 41-1)
M. SNYDER UNITED STATES MAGISTRATE JUDGE.
Findings and Recommendations are submitted to United States
District Judge Lawrence J. O’Neil under 28 U.S.C.
§ 636(b)(1)(B) and Local Civil Rule 302 of the United
States District Court for the Eastern District of California.
a Social Security appeal. Before the Court is
Plaintiff’s motion for attorney’s fees under the
Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412. Doc. 41-1. No hearing was held as the Court
found the matter suitable for submission on the papers. Local
LEGAL AND FACTUAL BACKGROUND
March 27, 2012 Plaintiff filed a complaint, by his attorney,
Sengthiene Bosavanh, challenging the denial of his disability
insurance and supplemental security income benefits by the
Commissioner of Social Security (“Commissioner”).
Doc. 1. The Court issued Findings and Recommendation
(“F&R”) to the district judge on May 24,
2013, recommending that he affirm the Commissioner’s
denial of benefits. Doc. 28. After considering
Plaintiff’s objections and finding them unpersuasive,
the district judge adopted the F&R and entered judgment
on June 25, 2013. Docs. 30-31.
filed a notice of appeal from the Court’s judgment.
Doc. 33. On November 10, 2015, the Ninth Circuit issued a
memorandum, vacated the Court’s judgment and remanded
with instructions for the Court to remand to the Commissioner
for further proceedings. The panel found error by
Administrative Law Judge (“ALJ”) in failing to
address a factual conflict in the record. The panel rejected
Plaintiff’s other challenges to the ALJ’s
decision. Doc. 37. Accordingly, the Court issued an order on
January 11, 2016, remanding the case for further
administrative proceedings consistent with the Ninth
Circuit’s memorandum. Doc. 39.
March 4, 2016, Plaintiff filed her EAJA motion with this
Therein, she seeks $13, 625.90 in attorney’s fees for
72.50 hours expended on this case. In support of the motion are the
following: (1) the declaration of attorney Jeffrey H. Baird,
(2) the affidavit of Ms. Bosavanh, (3) the fee agreement
between Plaintiff and the Law Offices of Jeffrey Milam, (4)
the Court’s January 11, 2016 order, (5) the Ninth
Circuit’s memorandum, and (6) an itemized statement of
the hours expended by Mr. Baird. Plaintiff asserts: (1) her
motion is timely, (2) she is the prevailing party, (3) her
net worth at the time this suit was filed did not exceed $2,
000, 000, (3) the government’s position was not
substantially justified, and (4) the hourly rates and amount
of time expended in the case were reasonable. Doc. 41. The
Commissioner filed an opposition on April 20, 2016, objecting
to Plaintiff’s motion on the ground that
Commissioner’s position was substantially justified.
Alternately, she contends that, if the Court finds her
position not substantially justified, Plaintiff’s total
fees should be reduced for hours expended on waived and
unnecessary arguments. Doc. 43. A week later, Plaintiff filed
a reply brief addressing the Commissioner’s position
and reiterated the reasonableness of counsel’s time.
Additionally, Plaintiff requests $608.90 in additional fees
for time expended drafting the EAJA motion and reply brief,
thereby bringing the total request to $14, 234.80. Doc. 44.
The Commissioner did not request to file a sur-reply brief.
Eligibility For EAJA Fees
Supreme Court has explained:
eligibility for a fee award in any civil action requires: (1)
that the claimant be a “prevailing party”; (2)
that the Government’s position was not
“substantially justified”; (3) that no
“special circumstances make an award unjust”;
and, (4) pursuant to 28 U.S.C. § 2412(d)(1)(B), that any
fee application be submitted to the court within 30 days of
final judgment in the action and be supported by an itemized
I.N.S. v. Jean, 496 U.S. 154, 158, (1990). In dispute
here is whether the Commissioner’s position was
“Substantial justification means ‘justified in
substance or in the main- that is, justified to a degree that
could satisfy a reasonable person.’ ”
Id. (quoting Pierce v. Underwood, 487 U.S.
552, 565 (1988)) (internal quotation marks omitted).
“Put differently, the government’s position must
have a ‘reasonable basis both in law and fact.’
” Id. (quoting Pierce, 487 U.S. at
565). “The ‘position of the United States’
includes both the government’s litigation
position and the underlying agency action
giving rise to the civil action.” Id. Thus, if
“the government’s underlying position was not
substantially justified, we [must award fees and] need not
address whether the government’s litigation position
Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014)
(quotations omitted and emphasis added). It is the government
who bears the burden of showing its position was
substantially justified. Id. “The nature and
scope of the ALJ’s legal errors are material in
determining whether the Commissioner’s decision to
defend them was substantially justified.” Sampson
v. Chater, 103 F.3d 918, 922 (9th Cir. 1996).
agency level, the ALJ found that Plaintiff could perform past
relevant work as she actually performed it. While not
expressly concluding the finding was legal error, the Ninth
Circuit remanded the case based on the ALJ’s failure to
“address or resolve” a conflict between
Plaintiff’s description of her past work as a secretary
and the physical residual functional capacity assessment of
her capability by state medical consultant, Dr. K. Vu Do. The
question therefore is whether, based on the record, the ALJ
had a reasonable basis in law and fact in not addressing or
resolving the conflict. See, e.g.,
Flores v. Shalala, 49 F.3d 562, 566 (9th Cir. 1995),
as amended on denial of reh'g (June 5, 1995)
(“the district court should . . . have considered
whether the Secretary was substantially justified with
respect to the procedural issue on which [Plaintiff]
recap, Plaintiff stated in her September 4, 2008, disability
report that she had worked as a secretary for fifteen years.
She reported spending each day walking, standing, and sitting
for eight hours; stopping, handling, reaching, and
grabbing/grasping for big objects for one hour; and writing,
typing or handling small objects for eight hours. AR
142-143 (emphasis added). In contrast, Dr. Vu Do’s
assessment stated Plaintiff could engage in “[f]requent
BUE [bilateral upper extremities] handling/fingering, ”
with frequent meaning between one-third to two-thirds of an
eight-hour workday. AR 392, 394. Indeed, the conflict between
the hours Plaintiff actually spent typing or handling small
objects-eight hours-and Dr. Vu Do’s assessment
that she could engage in handling or fingering for no more
than two thirds-six hours-of an eight-hour workday
was not addressed or resolved by the ALJ.
the Commissioner argues the ALJ was substantially justified
because Plaintiff’s description of her past work as a
secretary was implausible, buttressed by his finding that she
lacked credibility, such that it was not reliable evidence.
But this reason provides support, if any, for a basis in
fact; not in law. An ALJ’s duty to interpret and
resolve conflicts in the evidence is not novel. See,
e.g., Sample v. Schweiker, 694 F.2d 639,
642 (9th Cir. 1982) (“Where . . . medical reports are
inconclusive, questions of credibility and resolution of
conflicts in the testimony are functions solely of the
Secretary.”) (quotations and citations omitted);
Key v. Heckler, 754 F.2d 1545, 1550 (9th Cir. 1985)
(“the ALJ has the power to weigh conflicting evidence
and reach the conclusion that [he] did not suffer from a
severe mental impairment”); and Desrosiers v.
Sec’y of Health & Human Servs., 846 F.2d 573,
577 (9th Cir. 1988) (explaining that application of the
Medical-Vocational Guidelines requires an ALJ to “weigh
conflicting evidence concerning the claimant’s past
work experience, ...