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Wyatt v. Berryhill

United States District Court, D. Nevada

March 21, 2019

JAMES A. WYATT, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.

          REPORT & RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: ECF NO. 29

          William G. Cobb United States Magistrate Judge.

         This Report and Recommendation is made to the Honorable Howard D. McKibben, 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 (EAJA), 28 U.S.C. § 2412(d), and Costs Pursuant to 28 U.S.C. § 1920. (ECF No. 29.) The Commissioner of Social Security did not file a response.

         After a thorough review, it is recommended that the motion be granted.

         I. BACKGROUND

         Plaintiff, represented by counsel, filed his complaint requesting review of the Commissioner's final decision. (ECF No. 1.) Plaintiff filed a motion to remand, and the Commissioner filed a response and cross-motion to affirm. (ECF Nos 16, 17. 18.) The undersigned issued a report and recommendation that Plaintiff's motion to remand be denied, and the Commissioner's cross-motion to affirm be granted. (ECF No. 20.) Plaintiff filed an objection. (ECF No. 21.) District Judge McKibben adopted and accepted the report and recommendation, and denied Plaintiff's motion for remand and granted the Commissioner's cross-motion to affirm thereby affirming the final decision of the Commissioner, and entered judgment. (ECF Nos. 22, 23.) Plaintiff appealed. (ECF No. 24.) The parties subsequently stipulated that the matter be remanded to the Commissioner for further proceedings under sentence four of 42 U.S.C. § 405(g), and further stipulated that on remand the Appeals Council should issue a favorable decision finding Plaintiff disabled on his amended alleged onset date, December 9, 2015, which was the date he became an individual of advanced age. (See ECF No. 27.) Therefore, the appeal was dismissed. (Id.) Judge McKibben issued an order on the mandate. (ECF No. 28.)

         Plaintiff now moves for fees as prevailing party under the EAJA in the amount of $11, 881.35 and $905 in costs (the $400 filing fee in this action and the $505 filing fee in the Ninth Circuit) under 28 U.S.C. § 1920.

         II. LEGAL STANDARD

         Under the EAJA, "a court shall award to a prevailing party other than the United States fees and other expenses ... 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 by year.

         III. DISCUSSION

         A. Prevailing Party

         "[A]n applicant for benefits becomes the prevailing party upon procuring a sentence-four remand for further administrative proceedings, regardless of whether he later succeeds in obtaining the requested benefits." Flores v. Shalala, 49 F.3d 562, 568 (9th Cir. 1995) (citing Shalala v. Schaefer, 509 U.S. 292 (1993)).

         Here, Plaintiff obtained a sentence four remand and a favorable decision for Plaintiff by stipulation, as set forth in the Ninth Circuit's order and District Judge McKibben's order on the mandate. ...


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