United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
Cherish Fawn Ortiz commenced this social security action on
July 8, 2015. ECF Nos. 1-3. On September 19, 2016, the court
granted plaintiff's motion for summary judgment, denied
the Commissioner's cross-motion for summary judgment,
remanded the case for further proceedings pursuant to
sentence four of 42 U.S.C. § 405(g), and entered
judgment for plaintiff. ECF Nos. 19, 20. Presently pending
before the court is plaintiff's motion for attorneys'
fees pursuant to the Equal Access to Justice Act
(“EAJA”). ECF No. 21. The Commissioner filed an
opposition to plaintiff's motion, and plaintiff filed a
reply brief. ECF No. 22. Plaintiff submitted a reply. ECF No.
23. After considering the parties' briefing and the
applicable law, the court grants plaintiff's motion for
EAJA provides, in part, that:
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.
A party seeking an award of fees and other expenses shall,
within thirty days of final judgment in the action, submit to
the court an application for fees and other expenses which
shows that the party is a prevailing party and is eligible to
receive an award under this subsection, and the amount
sought, including an itemized statement from any attorney or
expert witness representing or appearing in behalf of the
party stating the actual time expended and the rate at which
fees and other expenses were computed. The party shall also
allege that the position of the United States was not
substantially justified. Whether or not the position of the
United States was substantially justified shall be determined
on the basis of the record (including the record with respect
to the action or failure to act by the agency upon which the
civil action is based) which is made in the civil action for
which fees and other expenses are sought.
The court, in its discretion may reduce the amount to be
awarded pursuant to this subsection, or deny an award, to the
extent that the prevailing party during the course of the
proceedings engaged in conduct which unduly and unreasonably
protracted the final resolution of the matter in controversy.
28 U.S.C. § 2412(d)(1)(A)-(C).
the Commissioner does not dispute that plaintiff is a
prevailing party, because he successfully obtained a remand
for further proceedings under sentence four of 42 U.S.C.
§ 405(g). Shalala v. Schaefer, 509 U.S. 292,
300-02 (1993). Furthermore, plaintiff's application for
EAJA fees is timely, because it was filed within thirty days
of final judgment in this action. Nevertheless, the
Commissioner argues that plaintiff is not entitled to an
award of fees under the EAJA, because the position of the
Commissioner was substantially justified. See Flores v.
Shalala, 49 F.3d 562, 569 (9th Cir. 1995) (holding that
claimant is entitled to attorneys' fees unless the
government shows that its position “with respect to the
issue on which the court based its remand was
burden of establishing substantial justification is on the
government. Gutierrez v. Barnhart, 274 F.3d 1255,
1258 (9th Cir. 2001). In Pierce v. Underwood, 487
U.S. 552 (1988), the Supreme Court defined “substantial
“justified in substance or in the main” - that
is, justified to a degree that could satisfy a reasonable
person. That is no different from the “reasonable basis
in both law and fact” formulation adopted by the Ninth
Circuit and the vast majority of other Courts of Appeals that
have addressed this issue.
Id. at 565. A position does not have to be correct
to be substantially justified. Id. at 566 n.2;
see also Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th
Cir. 2002). In determining substantial justification, the
court reviews both the underlying governmental action being
defended in the litigation and the positions taken by the
government in the litigation itself. Gutierrez, 274
F.3d at 1259.
Commissioner's argument that its position in this case
was substantially justified is unpersuasive. As discussed in
detail in the court's prior order,  the ALJ's
rejection of the opinion of plaintiff's treating
physician Dr. Marzano, and therefore disregarding potentially
probative medical evidence, without specific, legitimate, and
germane reasons for doing so was not justified. ECF No. 19 at
8. As such, the Commissioner's position during the
administrative proceedings, and its defense of that position
in the litigation before this court, were not substantially
justified. Therefore, having concluded that the
Commissioner's position was not substantially justified,
and that there are no other special circumstances that would
make an award //// of EAJA fees unjust, the court finds that
plaintiff is entitled to an award of fees pursuant to the
EAJA directs the court to award a reasonable fee. 28 U.S.C.
§ 2412(d)(2)(A). In determining whether a fee is
reasonable, the court considers the reasonable hourly rate,
the hours expended, and the results obtained. See
Commissioner, INS v. Jean, 496 U.S. 154, 163 (1990);
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983);
Atkins v. Apfel, 154 F.3d 986, 988 (9th Cir. 1998).
considering a reasonable rate for attorneys' fees, an
increase in the statutory rate of $125 may be justified to
account for increases in the cost of living. See Sorenson
v. Mink, 239 F.3d 1140, 1148 (9th Cir. 2001). The cost
of living adjustment to the statutory cap is computed by
multiplying the statutory cap by the consumer price index for
urban consumers for the year in which the fees were earned,
then dividing by the consumer price index figure on the date
that the cap was imposed by Congress. Id. at
1148-49; see also Thangaraja v. Gonzales, 428 F.3d
870, 876-77 (9th Cir. 2005). The national, rather than local,
change in cost of living should be applied to adjust the EAJA
rate cap because “if ...