Silva v. Saul

          ORDER

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on plaintiff's motion for attorney's fees pursuant to the Equal Access to Justice Act (“EAJA”).^[2] (ECF No. 26.) Plaintiff brought this action seeking judicial review of a final administrative decision denying plaintiff's application for Disability Insurance Benefits under Title II of the Social Security Act. On March 18, 2019, following the filing of a motion for summary judgment by plaintiff and a cross-motion for summary judgment by defendant, the undersigned granted plaintiff's motion, reversed the decision of the Commissioner, and remanded this action for the immediate award of benefits. (ECF No. 24.) On June 17, 2019, plaintiff filed a motion for attorney's fees. (ECF No. 26.) Defendant filed an opposition on July 9, 2019. (ECF No. 27.)

         STANDARDS

         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.

         ANALYSIS

         Here, the court finds that plaintiff is the prevailing party, that plaintiff did not unduly delay this litigation, and that plaintiff's net worth did not exceed two million dollars when this action was filed. (ECF No. 3.) Moreover, as explained below, the court finds that the position of the United States was not substantially justified.

         A.Substantial Justification

         “Substantial justification means ‘justified in substance or in the main-that is, justified to a degree that could satisfy a reasonable person.'” Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014) (quoting Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013)). “Put differently, the government's position must have a ‘reasonable basis both in law and fact.'” Meier, 727 F.3d at 870 (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). “‘[T]he position of the United States includes both the government's litigation position and the underlying agency action.'” Campbell v. Astrue, 736 F.3d 867, 868 (9th Cir. 2013) (quoting Meier, 727 F.3d at 870); see also Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008) (“the relevant question is whether the government's decision to defend on appeal the procedural errors committed by the ALJ was substantially justified”). “In determining whether a party is eligible for fees under EAJA, the district court must determine whether the government's position regarding the specific issue on which the district court based its remand was ‘substantially justified'-not whether the ALJ would ultimately deny disability benefits.” Gardner v. Berryhill, 856 F.3d 652, 656 (9th Cir. 2017).

         Here, defendant argues-in a vague and conclusory manner-that although the court “did not agree with the ALJ's decision . . . . under proper application of the EAJA analysis” the government's position was substantially justified. (Def.'s Opp.'n (ECF No. 27) at 3.) Defendant fails to offer any further argument or analysis in support of this mere assertion. Moreover, to say that the court “did not agree with the ALJ's decision” understates the degree to which the ALJ's decision was replete with legal errors.

         In this regard, the ALJ twice erred at step two of the sequential evaluation by failing to find that plaintiff's heart condition and obesity were severe impairments. (ECF No. 24 at 8.) The ALJ then erroneously rejected the opinions of a treating and examining physician. (Id. at 11-13.) The ALJ also rejected plaintiff's subjective testimony based on analysis that failed “to even approach a clear and convincing reason[.]” (Id. at 15.) Finally, the ALJ's hypothetical question to the Vocational Expert and Residual Functional Capacity determination were also erroneous. (Id. at 15-17.)

         Under these circumstances, the court cannot find that the government's position was substantially justified. See Tacas v. Astrue, No. CIV 09-2144 EFB, 2011 WL 5984007, at *2 (E.D. Cal. Nov. 29, 2011) (citing Gutierrez, 274 F.3d at 1259-60) (“when the government violates its own regulations, fails to acknowledge settled circuit case law, or fails to adequately develop the record, its position is not substantially justified.”).

         B.Plaintiff's ...