ORDER

CRAIG M. KELLISON, Magistrate Judge.

Plaintiff, who is proceeding with retained counsel, brings this action under 42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security. Pending before the court is plaintiff's motion (Doc 29) and supplemental application (Doc. 33) for fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) ("EAJA").1

Because this court issued a remand pursuant to sentence four of 42 U.S.C. § 405(g), plaintiff is a prevailing party for EAJA purposes. See Flores v. Shalala, 42 F.3d 562 (9th Cir. 1995). Under the EAJA, an award of reasonable attorney's fees is appropriate unless the Commissioner's position was "substantially justified" on law and fact with respect to the issue(s) on which the court based its remand. 28 U.S.C. § 2412(d)(1)(A); see Flores, 42 F.3d at 569. No presumption arises that the Commissioner's position was not substantially justified simply because the Commissioner did not prevail. See Kali v. Bowen, 854 F.2d 329 (9th Cir. 1988). The Commissioner's position is substantially justified if there is a genuine dispute. See Pierce v. Underwood, 487 U.S. 552 (1988). The burden of establishing substantial justification is on the government. See Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001).

In determining substantial justification, the court reviews both the underlying governmental action being defended in the litigation and the positions taken by the government in the litigation itself. See Barry v. Bowen, 825 F.2d 1324, 1331 (9th Cir. 1987), disapproved on other grounds, In re Slimick, 928 F.2d 304 (9th Cir. 1990). Where the underlying government action was not substantially justified, it is unnecessary to determine whether the government's litigation position was substantially justified. See Andrew v. Bowen, 837 F.2d 875, 880 (9th Cir. 1988). "The nature and scope of the ALJ's legal errors are material in determining whether the Commissioner's decision to defend them was substantially justified." Sampson v. Chater, 103 F.3d 918, 922 (9th Cir. 1996) (citing Flores, 49 F.3d at 570).

In this case, plaintiff argued: (1) the ALJ failed to provide reasons for tacitly rejecting limitations assessed by Drs. Hsia and Johnson; and (2) the ALJ erred by failing to fully develop the record. As to Dr. Hsia, the court held:

As to Dr. Johnson, the court held:

Finally, regarding development of the record, the court held: "As discussed above, the evidence regarding Dr. Johnson's climbing limitation is ambiguous in that it is not clear whether the limitation applies to stairs."

Restating the arguments raised in earlier briefs, defendant contends that plaintiff is not entitled to EAJA fees because its position was substantially justified. The underlying government action in this case, however, was not substantially justified because the Commissioner's failure to properly evaluate the medical opinions of Drs. Hsia and Johnson violated the Commissioner's own regulations. See Shafer v. Astrue, 518 F.3d 1067 (9th Cir. 2008); Gutierrez. V. Barnhart, 274 F.3d 1255 (9th Cir. 2001); Corbin v. Apfel, 149 F.3d 1051 (9th Cir. 1998).

Plaintiff seeks a total award of $8,249.78 ($6,129.08 in original motion and $2,120.70 in supplemental application). Defendant contends the amount sought in the original motion is not reasonable because: (1) 2.14 hours are claimed for work done prior to filing the action; (2) .28 hours are claimed for clerical tasks; and (3) .49 hours are claimed for work necessitated by counsel's error or delay.2 Upon review of the declarations submitted by plaintiff's counsel relating to these specific hours claimed, the court finds defendant's arguments unpersuasive and somewhat petty.

The final issue involved in this fee dispute is to whom the EAJA award should be paid. Plaintiff requests payment of attorney fees directly to counsel; defendant argues payment must be made to plaintiff personally, unless it is determined that plaintiff does not owe a government debt. In fact, defendant apparently concedes that once a fee award has been determined, the Treasury will determine whether plaintiff owes a federal debt, and if not the government will accept the assignment of fees and will pay counsel directly.

The undersigned agrees that Astrue v. Ratliff, 130 S.Ct. 2521, 2526-27 (2010), holds that an EAJA fee award is payable to the prevailing party, not the attorney, and is thus subject to offset for any debt owed to the government. To the extent plaintiff argues payment should be made directly to counsel as a representative payee, the court finds it unnecessary to reach such an argument given the Commissioner's concession that if no governmental debt is owed, payment may be made directly to counsel. The Commissioner states "[i]f, after an EAJA fee is awarded to Plaintiff, Treasury determines that Plaintiff does not owe a federal debt, the government will accept the assignment of EAJA fees and pay fees directly to Plaintiff's counsel." The court accepts this assurance, and once the determination is made as to whether there is an outstanding government debt, payment will be made to counsel.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for EAJA fees (Doc. 29) and supplemental application (Doc. 33) are granted in the amount of $8,249.78;

2. Following the issuance of this order, the government shall determine whether this award is subject to any offset for debts owed to the government; and

3. Pursuant to the Commissioner's assurance, if no debt is owed, the assignment of EAJA fees will be accepted and payment will be made directly to plaintiff's counsel.