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Nunez v. Berryhill

United States District Court, E.D. California

April 2, 2018

ELIZABETH NUNEZ, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.

          ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR ATTORNEY FEES AND EXPENSES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT (Doc. 19)

          SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE

         After successfully obtaining reversal of an Administrative Law Judge's (“ALJ”) decision denying her application for Social Security disability benefits, Plaintiff filed an application for an award of attorney fees and costs pursuant to the Equal Access to Justice Act (“EAJA”) in the amount of $5, 087.40. (See Doc. 19, seeking an award of $5, 081.06 in total fees (25.85 hours in attorney time and $6.34 in costs).)

         On March 5, 2018, Defendant filed an opposition asserting Plaintiff is not entitled to fees under the EAJA because Defendant's position was substantially justified. (See Doc. 21.) Alternatively, Defendant contends that the number of hours sought is unreasonable and should be reduced accordingly. (Id.)

         For the reasons set forth below, Plaintiffs application for EAJA fees and expenses is GRANTED IN PART.

         I. BACKGROUND

         Plaintiff filed this action on March 2, 2016, seeking judicial review of a final administrative decision denying her application for Social Security disability benefits. (Doc. 1.) On October 18, 2017, the Court issued an order reversing the ALJ's decision and remanding the case for award or benefits based on the ALJ's failure to fully and fairly develop the record. (Doc. 18.)

         On January 16, 2018, Plaintiff filed a motion for EAJA fees and expenses, contending she is the prevailing party in this litigation and seeking a total award of $6, 017.63 payable to her attorney Kelsey Mackenzie Brown. (See Doc. 19 at 8, seeking an award of $5, 081.06 in total fees (25.85 hours in attorney time and $6.34 in costs).) Defendant filed an opposition asserting that Plaintiffs fee request should be denied because Defendant's position was substantially justified. (See Doc. 21 at 3-4.) Defendant asserts that the treatment records from Plaintiffs treating physician that the ALJ failed to obtain are dated more than a year after the March 1, 2011 cessation date, and therefore are not material to the question of Plaintiffs residual functional capacity on or before that date. (See id.) Thus, Defendant contends there was a “genuine dispute” as to whether remand for the ALJ's failure to fully and fairly develop the record was warranted. (Id.)

         Alternatively, Defendant contends that Plaintiff spent an unreasonable number of hours on this case and impermissibly billed her time in “large and unexplained block-billing entries.” (Doc. 21 at 6.) Specifically, Defendant asserts that Plaintiffs counsel should not be compensated for 7.0 hours of time spent researching and drafting Plaintiffs opening brief because it is largely duplicative of Plaintiff s confidential letter brief. (See Id. at 5-6.) Defendant also contends that the Court should order any fees awarded be paid to Plaintiff, rather than his attorney, pursuant to Astrue v. Ratliff, 560 U.S. 586 (2010). (See Id. at 7-8.)

         It is Plaintiffs motion for attorney fees and expenses under the EAJA that is currently pending before the Court.

         II. LEGAL STANDARD

         The EAJA provides that “a court shall award to a prevailing party . . . fees and other expenses . . . incurred by that party in any civil action . . . brought by or against the United States . . . 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); see also Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002). “It is the government's burden to show that its position was substantially justified or that special circumstances exist to make an award unjust.” Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001).

         A “party” under the EAJA is defined as including “an individual whose net worth did not exceed $2, 000, 000 at the time the civil action was filed[.]” 28 U.S.C. § 2412(d)(2)(B)(i). The term “fees and other expenses” includes “reasonable attorney fees.” 28 U.S.C. § 2412(d)(2)(A). “The statute explicitly permits the court, in its discretion, to reduce the amount awarded to the prevailing party to the extent that the party ‘unduly and unreasonably protracted' the final resolution of the case.” Atkins v. Apfel, 154 F.3d 986, 987 (9th Cir. 1998) (citing 28 U.S.C. §§ 2412(d)(1)(C) & 2412(d)(2)(D)).

         A party who obtains a remand in a Social Security case is a prevailing party for purposes of the EAJA. Shalala v. Schaefer, 509 U.S. 292, 300-01 (1993) (“No holding of this Court has ever denied prevailing-party status . . . to a plaintiff who won a remand order pursuant to sentence four of § 405(g) . . ., which terminates the litigation with victory for the plaintiff). “An applicant for disability benefits becomes a prevailing party for the purposes of the EAJA if the denial of her benefits is reversed and remanded regardless of whether disability benefits ultimately are awarded.” Gutierrez, 274 F.3d at 1257.

         III. ...


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