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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Charles Evan Reed, Jr.,

Plaintiff,

v. 

Commissioner of Social Security 

Administration,

Defendant.

No. CV-17-04752-PHX-SMB

ORDER 

Pending before the Court is Plaintiff’s Motion for Attorney Fees Under the Equal 

Access to Justice Act. (Doc. 30.) Plaintiff attached a memorandum in support of the 

motion. (Doc. 31.) The Social Security Administration (“SSA”) has filed a response. (Doc. 

33.) Plaintiff has filed a reply. (Doc. 40.) The Court grants the motion and awards 

$27,709.80 for the reasons discussed below.

I. BACKGROUND

Plaintiff commenced this social security action on December 22, 2017. (Doc. 1.) On 

August 30, 2019, this Court affirmed the Commissioner of Social Security’s decision that 

Plaintiff was not disabled pursuant to the Social Security Act, 42 U.S.C. §§ 416, 423 (Docs. 

23, 24.) Plaintiff appealed, and on November 19, 2020, the Ninth Circuit reversed and 

remanded this case to the SSA for further proceedings. (Memorandum, No. 19-17179, 

DktEntry 36-1.) 

Thereafter, Plaintiff filed the instant motion for attorney’s fees and supporting 
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memorandum.

1

(Doc. 30, 31.) The Commissioner opposes the granting of fees, contending 

that its position in defending the ALJ’s assessment was “substantially justified” and 

alternatively, that the fees are nevertheless unreasonable. (Doc. 33 at 5, 10.) Plaintiff filed 

a reply. (Doc. 40.) 

II. LEGAL STANDARD

The Equal Access to Justice Act (“EAJA”) provides for an award of fees, other

expenses, and costs to a prevailing plaintiff “in any civil action (other than cases sounding 

in tort), including proceedings for judicial review of agency action” unless “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). The United States’ position “includes both the 

government’s litigation position and the underlying agency action giving rise to the civil 

action.” Meir v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). In the social security context, 

the ALJ’s decision is the relevant underlying agency action. Id.

To be “substantially justified,” the government’s position does not need to be 

correct, but rather needs to be “‘justified in substance or in the main’—that is, justified to 

a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565

(1988). The government bears the burden of showing “that its position was substantially 

justified or that special circumstances exist.” Gutierrez v. Barnhart, 274 F.3d 1255, 1258 

(9th Cir. 2001.) An agency’s decision that was “unsupported by substantial evidence” is “a 

strong indication” that the United States’ position “was not substantially justified.” 

Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005). ‘“Indeed, it will be only a 

“decidedly unusual case in which there is substantial justification under the EAJA even 

though the agency’s decision was reversed as lacking in reasonable, substantial and 

probative evidence in the record.”’ Id. (citing Al-Harbi v. I.N.S., 284 F.3d 1080, 1085 (9th 

Cir. 2002)). However, this is not dispositive, because the government’s loss “does not raise 

1 Plaintiff’s motion sought payment as authorized by the EAJA in the amount of 

$26,255.34. (Doc. 30 at 2.) Plaintiff’s reply in support of the motion amended that amount 

to $27,709.80 based on the additional time spent to complete the pending briefing. (Doc. 

40 at 16.) 
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a presumption that its position was not substantially justified.” Ibrahim v. U.S. Dep’t of

Homeland Sec., 912 F.3d 1147, 1168 (9th Cir. 2019). The Court should only consider the 

“procedural issues” that caused the remand and need not consider “the ultimate issue of 

disability” or the government’s position on “any other questions.” Flores v. Shalala, 49 

F.3d 562, 566 (9th Cir. 1995); see also Sampson v. Chater, 103 F.3d 918, 922 (9th Cir. 

1996) (citing Flores, 49 F.3d at 570) (“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.”).

III. DISCUSSION

Plaintiff asserts he is the prevailing party for EAJA purposes because he obtained

a remand for further proceedings from the Ninth Circuit. (Doc. 30 at 1); see Shalala v. 

Schaefer, 509 U.S. 292, 300-01 (1993). The Commissioner does not dispute Plaintiff’s 

prevailing party status. (Doc. 33 at 4.) Therefore, the Court will now determine whether 

the SSA has succeeded in showing the government’s position was substantially justified. 

A. Substantial Justification

When determining whether the government’s position was substantially justified,

“unreasonable agency action at any level entitles the litigant to EAJA fees.” Ibrahim, 912 

F.3d at 1167; see also Meier, 727 F.3d at 872 (“Because the government’s underlying 

position was not substantially justified, we need not address whether the government’s 

litigation position was justified.”). Hence, the Court will first determine whether the ALJ 

decision was substantially justified.

The Ninth Circuit upheld the ALJ’s rationale on all but one issue. (Doc. 31 at 6.) 

The appellate court remanded because the ALJ erred in rejecting the Plaintiff’s testimony 

regarding the severity of his symptoms. (Id.) The Ninth Circuit held that the ALJ “could 

only reject Reed’s testimony ... by offering specific, clear and convincing reasons for 

doing so.” (Id. at 6-7); see Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The 

appellate court noted that the ALJ ‘“merely stated that Reed’s “statements concerning the 

intensity, persistence, and limiting effects of these symptoms are not supported by the 
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evidence to the extent they are inconsistent with the above residual functional capacity 

assessment,” and then turned to a discussion of the medical evidence.”’ (Id. at 7.) Thus, the

Circuit court found that the ALJ’s findings were “insufficient to meet our requirements of 

specificity.” (Id.) 

The SSA contends the Ninth Circuit remanded because “the panel took a different 

view” regarding how the ALJ should have articulated its findings about Plaintiff’s 

subjective symptoms, and “the ALJ cited the standard boilerplate language.” (Doc. 33 at 

7.)2 The Commissioner further adds that the panel did not state whether the ALJ’s findings 

“would have been proper reasons” because the findings were “articulated in a different 

portion of the ALJ decision.” (Id.) The Plaintiff argues that this is incorrect because the 

ALJ did not “specify what symptom testimony is rejected, and what evidence is found to 

undermine that symptom testimony.” (Doc. 40 at 4.) Plaintiff is correct. The ALJ failed to 

offer “specific, clear and convincing reasons” for rejecting Plaintiff’s testimony. (Doc. 31 

at 6, 7.) 

An ALJ’s failure to provide “clear and convincing reasons” for discrediting a 

plaintiff’s testimony is a fundamental procedural error that lacks substantial justification.

Shafer v. Astrue, 518 F.3d 1067, 1071-72 (9th Cir. 2008). “General findings are 

insufficient” to discredit Plaintiff’s subjective symptom testimony. Lester v. Chater, 81 

F.3d 821, 834 (9th Cir. 1995). Here, the ALJ committed a fundamental procedural error by 

rejecting the Plaintiff’s symptom testimony without clear and convincing reasons.

Therefore, the underlying government action was not substantially justified. 

At this point in the analysis, since the Court has found that the government’s 

underlying action was not substantially justified, the Court does not need to address 

whether the government’s litigation position was substantially justified. See Meier, 727 

F.3d at 872. However, for good measure, the Court will still address this inquiry. While the 

2 The SSA mentions that the “ALJ’s specific findings discussed by this Court” were not 

analyzed by the Ninth Circuit. (Doc. 33 at 7.) “It is settled law that a district court’s decision 

to affirm, reverse or modify a determination of the Social Security Administration is 

reviewed de novo on appeal.” Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000).
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government’s defense of an ALJ’s procedural error “does not automatically require a 

finding that the government’s position was not substantially justified, the defense of basic 

and fundamental errors . . . is difficult to justify.” Corbin v. Apfel, 149 F.3d 1051, 1053 

(9th Cir. 1998).

The SSA argues that the its actions met a ‘“lower substantially justified”’ standard. 

(Doc. 33 at 5.) More specifically, the SSA cites to Tommasetti to assert that the defense of 

the ALJ’s decision was substantially justified because “an ALJ’s ‘credibility’ findings are 

sufficient when they show that the ALJ did not arbitrarily discredit a claimant’s testimony.” 

Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). However, the opinion goes 

further to state that, “the ALJ can reject the claimant’s testimony about the severity of [his] 

symptoms only by offering specific, clear and convincing reasons for doing so.” Id. As 

mentioned above, the ALJ failed to offer such reasons here. Therefore, the SSA has clearly 

not presented evidence of a lower substantially justified standard.3

The SSA contends that the fact this Court affirmed the agency decision to deny 

Plaintiff’s application for disability benefits “implies [the SSA’s] position was reasonably 

based in law and fact.” (Doc. 33 at 6.) The Plaintiff argues that “while a prior favorable 

3 The SSA additionally cites to Williams v. Bowen, 934 F.2d 221, 223 (9th Cir. 1991), 

amended and superseded by Williams v. Bowen, 966 F.2d 1259 (9th Cir. 1991), to show 

that the substantial justification test is satisfied if “some evidence supported the Secretary’s 

position.” (Doc. 33 at 8.) While Bowen held that the district court did not abuse its 

discretion in denying EAJA fees, the Ninth Circuit case law has since adopted a new 

interpretation of substantial justification. See Flores v. Shalala, 49 F.3d 562, 569-70 (9th 

Cir. 1995).

The SSA also cites to Hardisty v. Astrue, 592 F.3d 1072, 1075 (9th Cir. 2010), to argue 

that the ALJ’s subjective symptom analysis has a “reasonable basis in fact” because the 

record “provides at least some support for the ALJ’s findings.” (Doc. 33 at 8.) However, 

Hardisty does not apply to these facts. In Hardisty, the ALJ made an erroneous credibility 

finding due to facts and testimony that were later discredited. Hardisty, 592 F.3d at 1075. 

There, the Ninth Circuit found the government’s position substantially justified because 

the evidence that the government relied upon to make its credibility determination had 

some basis in the record. Id. Here, the cause for remand is solely because the ALJ failed to 

set forth “specific, clear and convincing reasons” to reject the Plaintiff’s testimony. (Doc. 

31 at 6.)
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ruling may be a factor to be considered,” the ruling is insufficient to demonstrate substantial 

justification. (Doc. 40 at 3.) “Obviously, the fact one other court agreed or disagreed with 

the Government does not establish whether its position was substantially justified.” Pierce, 

487 U.S. 552 at 569. However, “objective indicia,” such as prior court rulings, can be 

relevant to establishing “substantial justification.” Id. at 553. The prior decision is not alone 

sufficient to show the government’s litigation position was substantially justified. 

Thus, the Court finds Plaintiff eligible for an award of fees under the EAJA.

B. Reasonableness of the Fee Request

“[O]nce a private litigant has met the multiple conditions for eligibility for EAJA 

fees, the district court’s task of determining what fee is reasonable is essentially the same 

as that described in Hensley.” Comm’r, I.N.S. v. Jean, 496 U.S. 154, 161 (1990). “The most 

useful starting point for determining the amount of a reasonable fee is the number of hours 

reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. 

Eckerhart, 461 U.S. 424, 433 (1983).4 Hours that were not “reasonably expended” should 

be excluded from the initial fee calculation. Id. This method of fee calculation is now 

referred to as the “lodestar” method. Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 

1135 (9th Cir. 2012). 

The SSA does not dispute the reasonableness of the hourly rate charged because 

Plaintiff’s counsel charged the statutory maximum rates.5 However, the SSA disputes 

whether the amount of time Plaintiff’s counsel billed was reasonable. 

Plaintiff requests $27,709.80 in attorney’s fees as reimbursement for 135.30 billable 

hours. (Doc. 31; Doc. 40.) The SSA argues that the Court should reduce Plaintiff’s original 

fee request by $6,279.10 to account for unreasonable billing. (Doc. 33 at 19.) The SSA

challenges the documented hours on the following grounds: (1) the Plaintiff has “failed to 

4

In Whitehead v. Colvin, 2016 WL 1464469, at *2 n.1 (W.D. Wash. Apr. 14, 2016), the 

court noted that the Prison Litigation Reform Act had in part superseded Hensley. This 

statutory change is not relevant here, because this case does not involve prisoner litigation.

5

“Statutory Maximum Rates Under the Equal Access to Justice Act,” available at 

https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039. 
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meet his burden that his fee request is reasonable,” (2) the amount of fees “requested for 

drafting of the complaint” is unreasonable, (3) the “time spent drafting and reviewing the 

district court opening brief was unreasonable,” (4) the “time spent drafting and reviewing 

the Ninth Circuit opening brief was unreasonable, and (5) the fees sought for “reviewing 

filed documents that counsel had already reviewed and edited are unreasonable.” (Id. at 2.) 

The SSA does not cite to any authority to offer arguments concerning its first point that 

Plaintiff’s counsel’s fees were unreasonable. (Id. at 10.) Therefore, the Court will focus on 

the SSA’s remaining four arguments.

The SSA contends that there is no justification for “spending 9.5 hours drafting a 

16-page complaint.” (Id. at 9.) To support this position, the SSA argues that Plaintiff’s 

counsel could have drafted a simpler complaint, akin to the pro se complaints this Court 

and other courts find sufficient. (Id. at 10.) The Plaintiff argues that a “persuasive complaint 

might avoid further litigation by convincing the agency that its position is unjustified and 

the case merits remand for administrative action to correct the agency’s errors.” (Doc. 40 

at 11.) The Plaintiff cites to 42 U.S.C. § 405(g) which contemplates such a scenario and 

multiple cases where this occurred. (Id.) Expending time early on at the complaint-stage to 

avoid unnecessary litigation is wise in any litigation, and the Court finds the time requested 

is not unreasonable. 

The Commissioner asserts that the time Plaintiff’s counsel spent drafting the district 

court and Ninth Circuit briefs was unreasonable because of the use of boilerplate language

and the “duplicate work.” (Doc. 33 at 14, 17.) The Plaintiff contends that the use of 

boilerplate language saved time. (Doc. 40 at 12.) Additionally, while the use of multiple 

attorneys may lead to some duplication of services, the Plaintiff asserts that “it is the result 

that counts,” and the case here “could have been more efficiently lost, as well.” (Doc. 40 

at 12); see also Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008) (“One 

certainly expects some degree of duplication as an inherent part of the process.”). The Court 

agrees with the Plaintiff that technical efficiency is not the primary aim of representation 

and finds that the hours expended to draft the district court and Ninth Circuit briefs was 
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reasonable.

The SSA additionally asserts that Plaintiff’s counsel should not request fees for time 

spent reviewing filed documents. (Doc. 33 at 18.) Plaintiff contends that “at times errors 

have been caught in filed documents that could be corrected before this Court’s review.” 

(Doc. 40 at 15.) Because this Court allows for the correction of errors in filed documents, 

such review for potential revisions is acceptable. 

Finally, the Commissioner argues that any fees requested by Plaintiff in drafting a 

reply should not be permitted. (Doc. 33 at 18.) The Plaintiff requests compensation for 7.0

additional hours. (Doc. 40 at 16.) The award of “fees-on-fees,” or fees accrued in 

connection with a motion for attorney’s fees, is permitted. Thompson v. Gomez, 45 F.3d 

1365, 1367 (9th Cir. 1995). Therefore, the total EAJA request of $27,709.80 will be 

awarded.

Pursuant to Plaintiff’s fee agreement (Doc. 31-1), the Court will award EAJA 

attorney’s fees payable to Plaintiff’s counsel so long as Plaintiff does not owe debt subject 

to the Treasury Offset Program. See Astrue v. Ratliff, 560 U.S. 586, 597 (2010).

IV. CONCLUSION

For the above stated reasons,

IT IS ORDERED that Plaintiff’s Motion for Award of Attorney Fees as Authorized 

by the Equal Access to Justice Act, (Doc. 30), is granted.

IT IS FURTHER ORDERED that Plaintiff is awarded $27,709.80 in attorney’s 

fees.

IT IS FURTHER ORDERED that if there is a debt owed under the Treasury Offset 

Program, the remaining award after offset will be paid in the name of the Plaintiff, but the 

check will be sent to Plaintiff’s counsel. However, if the SSA determines that Plaintiff does

///

///

///

///
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not owe a federal debt subject to offset and agrees to waive the requirements of the AntiAssignment Act, 31 U.S.C. § 3727, payment shall be made in the name of Plaintiff’s 

counsel. 

Dated this 13th day of July, 2021.