United States District Court, D. Nevada
REPORT & RECOMMENDATION OF U.S. MAGISTRATE
WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE.
Report and Recommendation is made to the Honorable Larry R.
Hicks, Senior United States District Judge. The action was
referred to the undersigned Magistrate Judge pursuant to 28
U.S.C. § 636(b)(1)(B) and the Local Rules of Practice,
LR 1B 1-4.
the court is Plaintiff's Motion for Award of Attorney
Fees Pursuant to the Equal Access to Justice Act. (ECF No.
28; Supporting Declarations at ECF Nos. 28-1, 28-2; billing
records at ECF No. 28-3.) The Commissioner filed a response
(ECF No. 29), and Plaintiff filed a reply (ECF No. 30).
thorough review, it is recommended that Plaintiff's
motion be granted.
April 28, 2016, Plaintiff, who was represented by counsel,
paid the $400 filing fee and filed his complaint for review
of the decision of the Commissioner finding him not disabled
under 42 U.S.C. § 405(g). (ECF No. 1.) Plaintiff
subsequently filed a motion for reversal or remand of the
Commissioner's decision finding him not disabled. (ECF
No. 9.) Plaintiff made the following arguments: (1) the ALJ
failed to provide clear and convincing reasons for finding
Plaintiff's testimony only partially credible; (2) the
ALJ erroneously disregarded the opinions Plaintiff's
treating orthopedist, Dr. Bakshian, in favor of the State
disability non-examining physician; (3) the ALJ failed to
reconcile the conflict between the jobs the vocational expert
(VE) testified Plaintiff could do that were classified by the
Dictionary of Occupational Titles (DOT) at the light
exertional level, and the residual functional capacity (RFC)
limitation to stand for two hours; and (4) the ALJ should
have considered Medical Vocational Rule 201.14 to find
Plaintiff disabled. The Commissioner opposed the motion (ECF
No. 17), and filed a cross-motion to affirm the agency's
decision (ECF No. 19).
undersigned issued a report and recommendation that
Plaintiff's motion be granted in part, and that the
Commissioner's motion be denied. (ECF No. 22.) First, the
court rejected Plaintiff's argument that the ALJ erred in
assessing Plaintiff's credibility, finding that the ALJ
set forth clear and convincing reasons for partially
discrediting Plaintiff. Second, the court also rejected
Plaintiff's argument that the ALJ erred in rejecting Dr.
Bakshian's opinion limiting Plaintiff to less than six
hours of sitting in an eight-hour day, finding that the ALJ
did set forth specific and legitimate reasons for rejecting
the opinion Plaintiff could sit for less than six hours.
Third, while the court found the ALJ set forth specific and
legitimate reasons for not adopting Dr. Bakshian's
opinion concerning how long Plaintiff could sit in a work
day, the court concluded that the ALJ erred in failing to
acknowledge or discuss Dr. Bakshian's statements
regarding the need to alternate between sitting and standing,
and whether standard breaks would be sufficient to
accommodate this limitation. Fourth, the undersigned
determined that there was an apparent conflict between the
VE's testimony Plaintiff could perform jobs classified by
the DOT at the light exertional level, when the ALJ limited
Plaintiff to walking and standing for only two hours in an
eight-hour day. The ALJ erred in failing to recognize the
conflict and elicit a reasonable explanation from the VE
before finding Plaintiff could in fact perform those jobs.
Finally, the court determined that Medical Vocational Rule
201.14 did not direct a finding of disability. The
undersigned recommended remand on the issue of whether
Plaintiff could perform jobs identified by the VE at the
light exertional level when the ALJ limited Plaintiff to
standing and walking for two hours in a workday.
Commissioner filed an objection (ECF No. 23), and Plaintiff
filed a response (ECF No. 24). District Judge Larry R. Hicks
adopted and accepted the report and recommendation, and
remanded the matter for further development consistent with
the report and recommendation. (ECF No. 26.) Judgment was
entered on February 15, 2017. (ECF No. 27.)
subsequently filed the motion for attorney fees under the
Equal Access to Justice Act (EAJA), 28 U.S.C. §
2412(d)(1)(A). Plaintiff seeks an award of fees in the amount
of $4, 489.44, for 23.3 hours of work done at the rate of
$192.68, plus $400 in costs for the filing fee.
Commissioner opposes the motion on grounds that the
government's position was substantially justified, and
further argues that the amount of fees requested is
[A] court shall award to a prevailing party other than the
United States fees and other expenses …, 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 …,
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 Pierce v.
Underwood, 487 U.S. 552, 566 n. 2 (1988); Hardisty
v. Astrue, 592 F.3d 1072, 1076 (9th Cir. 2010).
“[F]ees and other expenses” include
“reasonable attorney fees.” 28 U.S.C. §
2412(d)(2)(A). Under the EAJA, attorney's fees are set at
the market rate, but capped at $125 per hour “unless
the court determines that an increase in the cost of living
or a special factor, such as the limited availability of
qualified attorneys for the proceedings involved, justifies a
higher fee.” 28 U.S.C. § 2412(d)(2)(A). The Ninth
Circuit has set the applicable statutory maximum hourly rate
under the EAJA, adjusted for increases in the cost of living
as $192.68 in 2016, and this is the rate utilized by
Plaintiff's counsel. See
last visited February 5, 2018. The Commissioner did not
assert an objection to utilizing this rate.