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Lindrum v. Berryhill

United States District Court, D. Nevada

February 5, 2018

SCOTT AARON LINDRUM, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT & RECOMMENDATION OF U.S. MAGISTRATE JUDGE

          WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE.

         This 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.

         Before 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).

         After a thorough review, it is recommended that Plaintiff's motion be granted.

         I. BACKGROUND

         On 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).

         The 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.

         The 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.)

         Plaintiff 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.

         The Commissioner opposes the motion on grounds that the government's position was substantially justified, and further argues that the amount of fees requested is unreasonable.

         II. LEGAL STANDARD

         Under the EAJA:

[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 https://www.ca9.uscourts.gov/content/view.php?pkid=0000000039, last visited February 5, 2018. The Commissioner did not assert an objection to utilizing this rate.

         III. DISCUSSION

         1. ...


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