ALLISON CLAIRE, Magistrate Judge.
This matter is before the court on plaintiff's motion for attorney fees pursuant to the Equal Access to Justice Act ("EAJA"), filed on November 6, 2015. ECF No. 30. The Commissioner has not filed an opposition.
Plaintiff brought this action on August 10, 2014, seeking judicial review of a final administrative decision denying his application for period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act ("the Act"). ECF No. 1. On September 18, 2015, following the filing of a motion for summary judgment by plaintiff and a cross-motion for summary judgment by defendant, the court granted plaintiff's motion in part, reversed the decision of the Commissioner and remanded the action for further proceedings. ECF No. 28.
The court's decision was based upon the conclusion that (1) the Administrative Law Judge ("ALJ") did not give clear and convincing reasons supported by substantial evidence for discounting plaintiff's testimony, and (2) the ALJ committed legal error by failing to articulate specific and legitimate reasons supported by substantial evidence for affording the medical opinion of Dr. Song, plaintiff's treating physician, little weight.
On November 06, 2015, plaintiff filed a motion for attorney fees seeking a fee award of $5,501.57 for 29 hours of attorney time expended in connection with this action.
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);
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."
A party who obtains a remand in a Social Security case is a prevailing party for purposes of the EAJA.
Here, the court finds that plaintiff is the prevailing party. Moreover, the court finds that plaintiff did not unduly delay this litigation, and that his net worth did not exceed two million dollars when this action was filed. The court also finds that the position of the government was not substantially justified. Once again, "[i]t is the government's burden to show that its position was substantially justified or that special circumstances exist to make an award unjust."
The EAJA expressly provides for an award of "reasonable" attorney fees. 28 U.S.C. § 2412(d)(2)A). Under the EAJA, hourly rates for attorney fees have been capped at $125.00 since 1996, but district courts are permitted to adjust the rate to compensate for an increase in the cost of living.
Here, plaintiff's attorney obtained an order for a new hearing despite defendant's cross-motion for summary judgment. After carefully reviewing the record and the pending motion, the court finds that the claimed 29 hours to be a reasonable amount of attorney time to have expended on this matter and declines to conduct a line-by-line analysis of counsel's billing entries.
The court will not, however, grant plaintiff's motion in full because plaintiff's counsel does not show why he and not plaintiff is entitled to the EAJA fees. Generally, "a § 2412(d) fees award is payable to the litigant and is therefore subject to a Government offset to satisfy a pre-existing debt that the litigant owes the United States."
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for attorney fees under the Equal Access to Justice Act, ECF No. 30, is GRANTED IN PART;
2. Plaintiff is awarded $5,501.57 for attorney fees under 28 U.S.C. § 2412(d); and
3. Defendant shall determine whether plaintiff's EAJA attorneys' fees are subject to any offset permitted under the United States Department of the Treasury's Offset Program and, if the fees are not subject to an offset, shall pay EAJA fees directly to plaintiff unless plaintiff's counsel can provide the Commissioner with a valid agreement assigning EAJA fees to plaintiff's counsel.