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Simon v. Berryhill

United States District Court, E.D. California

May 10, 2017

YVONNE SIMON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER GRANTING PLAINTIFF'S MOTION FOR ATTORNEY FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT (ECF, 30)

         I. INTRODUCTION

         Plaintiff Yvonne Simon filed a complaint challenging the denial of her application for disability insurance benefits on August 10, 2015. (ECF No. 1.) On December 12, 2016, the parties stipulated to a voluntary remand of the case to the Social Security Administration. (ECF No. 28.) The Court entered judgment in Plaintiff's favor. (ECF No. 29.)

         Plaintiff now seeks attorney fees pursuant to the Equal Access to Justice Act (28 U.S.C. § 2412(d)) (“EAJA”) in the amount of $4, 283.66, and $6.63 in costs, for a total of $4, 290.29.[1](ECF No. 30.) Defendant was instructed to file an opposition or statement of non-opposition no later than April 12, 2017, but never filed any response to Plaintiff's Motion. Based on the pleadings and attachments submitted, the Court GRANTS Plaintiff's motion. Plaintiff shall be awarded fees in the amount of $4, 283.66 and $6.63 in costs.

         II. DISCUSSION

         A. Legal Standard

         Under 28 U.S.C. § 2412(d)(1)(A), claimants who successfully challenge an agency decision in a civil action are entitled to reasonable fees and expenses:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, 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).

         When a claimant wins a remand based on an incorrect decision by the Commissioner, attorney fees are to be awarded unless the Commissioner shows that she was “substantially justified” in her position or that special circumstances make an award unjust. Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013) (“It is the government's burden to show that its position was substantially justified.”).

         B. Analysis

         In the underlying litigation, Plaintiff challenged the ALJ's decision by arguing that the ALJ: (1) incorrectly rejected the medical opinion of Carol Fetterman, M.D.; and (2) found Plaintiff not credible. After filing her opening brief, Defendant entered into a stipulation with Plaintiff to voluntarily remand the case and provide Plaintiff with a de novo hearing.

         Plaintiff argues that she is the prevailing party in this litigation and is entitled to attorney's fees. Moreover, the request for $4, 290.29 is reasonable because it represents payment for the number of hours and costs actually expended on this case.

         1.The Commissioner's position was not substantially justified.

         “It is the government's burden to show that its position was substantially justified.” Meier, 727 F.3d at 870, citing Gutierrez v. Barnhardt, 274 F.3d 1255, 1258 (9th Cir. 2001). “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). “Put differently, the government's position must have a ‘reasonable basis in both law and fact.'” Id., citing Pierce v. Underwood, 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., citing Hardisty v. Astrue, 592 F.3d 1072, 1077 (9th Cir. 2001). If the government's underlying agency action was not substantially justified, it is not necessary to address ...


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