(SS) Wojtowicz v. Commissioner of Social Security

Opinion

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11 ROBERT WOJTOWICZ, ) Case No.: 1:19-cv-1138 JLT ) 12 Plaintiff, ) ORDER GRANTING IN PART PLAINTIFF’S ) MOTION FOR ATTORNEY’S FEES PURSUANT 13 v. ) TO THE EQUAL ACCESS TO JUSTICE ACT, 28 ) 14 KILOLO KIJAKAZI1, ) U.S.C. § 2412 Acting Commissioner of Social Security, ) 15 ) (Doc. 31) Defendant. ) 16 )

17 Plaintiff seeks an award of attorney fees pursuant to the Equal Access for Justice Act, 28 18 U.S.C. § 2412(d). (Doc. 31.) The Commissioner of Social Security opposes the motion, asserting that 19 Plaintiff is not entitled to fees simply because he prevailed, and the fees requested are excessive. 20 (Doc. 33.) Because the Administrative Law Judge’s decision was contrary to established standards set 21 forth by the Regulations and the Ninth Circuit, the decision and the Commissioner’s defense thereof 22 were not substantially justified. For the reasons set forth, Plaintiff’s motion fees under the EAJA is 23 GRANTED in the modified amount of $10,700.35. 24 I. Background 25 In August 2016, Plaintiff filed applications for a period of disability and disability insurance 26 27 1 This action was originally filed against Andrew Saul in his capacity as the Commissioner of Social Security. 28 (See Doc. 1 at 1.) The Court has substituted Kilolo Kijakazi, who has since been appointed the Acting Commissioner of 1 benefits under Title II of the Social Security Act. (Doc. 12-4 at 2; Doc. 12-3 at 16.) The Social 2 Security Administration denied Plaintiff’s applications for benefits at the initial level and upon 3 reconsideration. (See generally Doc. 12-4.) Plaintiff requested an administrative hearing and he 4 testified before an ALJ on April 25, 2018. (Doc. 12-3 at 16, 33.) The ALJ concluded Plaintiff was not 5 disabled and issued an order denying benefits on September 26, 2018. (Id. at 16-27.) The Appeals 6 Council denied Plaintiff’s request for review of the decision on June 15, 2019 (id. at 2-5), and the 7 ALJ’s determination became the final decision of the Commissioner. 8 Plaintiff initiated the action before this Court on April 28, 2017, seeking judicial review of the 9 ALJ’s decision. (Doc. 1) The Court determined the ALJ erred in evaluating Plaintiff’s subjective 10 statements, including addressing the following factors: activities of daily living, the treatment Plaintiff 11 received, and inconsistency with the objective evidence. (Doc. 29 at 8-11.) In addition, the Court 12 found the ALJ erred in evaluating the opinion of Plaintiff’s treating physician. (Id. at 11-17.) The 13 Court remanded the matter for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g) on 14 January 19, 2021. (Id. at 17-18.) 15 Following the entry of judgment (Doc. 21), Plaintiff filed the motion for fees under the EAJA 16 now pending before the Court. (Doc. 31.) The Commissioner filed an opposition to the motion on 17 June 1, 2021. (Doc. 33) 18 II. Legal Standards for EAJA Fees 19 The EAJA provides that a court shall award fees and costs incurred by a prevailing party “in any 20 civil action . . . including proceedings for judicial review of agency action, brought by or against the 21 United States . . . unless the court finds that the position of the United States was substantially justified 22 or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). A party eligible to 23 receive an award of attorney fees under the EAJA must be the prevailing party who received a final 24 judgment in the civil action. 28 U.S.C. § 2412(d)(2)(H). 25 The party seeking the award of EAJA fees has the burden of proof that fees requested are 26 reasonable. See Hensley v. Eckerhart, 461 U.S. 424, 434, 437 (1983); see also Atkins v. Apfel, 154 F.3d 27 988 (9th Cir. 1998) (specifically applying these principles to fee requests under the EAJA). As a result, 28 “[t]he fee applicant bears the burden of documenting the appropriate hours expended in the litigation, 1 and must submit evidence in support of those hours worked.” Gates v. Deukmejian, 987 F.2d 1392, 2 1397 (9th Cir. 1992); see also 28 U.S.C. § 2412(d)(1)(B) (“A party seeking an award of fees and other 3 expenses shall . . . submit to the court an application for fees and other expenses which shows . . . the 4 amount sought, including an itemized statement from any attorney . . . stating the actual time 5 expended”). 6 Where documentation of the expended time is inadequate, the court may reduce the requested 7 award. Hensley, 461 U.S. at 433, 436-47. Further, “hours that were not ‘reasonably expended” should 8 be excluded from an award, including “hours that are excessive, redundant, or otherwise unnecessary.” 9 Id. at 434. A determination of the number of hours reasonably expended is within the Court’s 10 discretion. Cunningham v. County of Los Angeles, 879 F.2d 481, 484-85 (9th Cir. 1988). 11 III. Discussion and Analysis 12 A claimant who receives a sentence four remand in a Social Security case is a prevailing party 13 for EAJA purposes. Shalala v. Schaefer, 509 U.S. 292, 301-02 (1993); Flores v. Shalala, 49 F.3d 562, 14 568 (9th Cir. 1995). Consequently, Plaintiff was the prevailing party. (See Doc. 29.) Defendant does 15 not dispute that Plaintiff is a prevailing party but argues the position of the Commissioner was 16 substantially justified and the fees requested are excessive. (Doc. 33.) 17 A. Whether Defendant’s position was substantially justified 18 The Supreme Court has defined “substantially justified” as “justified to a degree that could 19 satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). In addition, “[a] 20 substantially justified position must have a reasonable basis in both law and fact.” Gutierrez v. 21 Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001). The standard can be satisfied if there is a “genuine 22 dispute” or if “reasonable people could differ as to the appropriateness of the contested action.” Pierce, 23 487 U.S. at 565 (internal quotations and alterations omitted). The burden of proof that the position was 24 substantially justified rests on the government. Scarborough v. Principi, 54 U.S. 401, 403 (2004); 25 Gonzales v. Free Speech Coalition, 408 F.3d 613, 618 (9th Cir. 2005). 26 Establishing that a position was substantially justified is a two-step process. 28 U.S.C. § 27 2412(d)(2)(D). First, “the action or failure to act by the agency” must be substantially justified. Id. 28 Second, the Commissioner’s position taken in the civil action was substantially justified. Id. The 1 inquiry into whether the government had a substantial justification must be found on both inquiries. 2 Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1998). Thus, both the ALJ’s decision and the 3 Commissioner’s arguments to this Court in defense of the administrative decision must have been 4 substantially justified. To find that a position was substantially justified when based on violations of 5 the Constitution, federal statute, or the agency’s own regulations, is an abuse of discretion. Sampson v. 6 Chater, 103 F.3d 918, 921 (9th Cir. 1996). 7 Plaintiff’s case was remanded, in part, for the ALJ’s failure to evaluate Plaintiff’s subjective 8 statements in a proper manner. (Doc. 20 at 8-11.) The Court noted the ALJ purported to consider 9 Plaintiff’s activities of daily living, the treatment received, and inconsistency with the objective 10 evidence. Despite this, the Court found the ALJ’s stated reasons were not supported by the record. 11 (See id.) In addition, the Court determined “[t]he ALJ failed to carry the burden to identify specific and 12 legitimate reasons, supported by the record, to reject the limitations identified” by Plaintiff’s treating 13 physician, Dr. Pistel. (Id. at 16.) 14 Defendant argues that “reasonable minds could differ regarding the ALJ’s consideration of 15 Plaintiff’s subjective allegations” and the “ALJ’s consideration of the medical opinions.” (Doc. 33 at 3, 16 5 [emphasis omitted].) Defendant asserts, “it was reasonable for the ALJ to find” inconsistencies with 17 Plaintiff’s level of activity, medical records, and conservative treatment. (Id. at 4.) According to 18 Defendant, “While the Court came to a different conclusion, it was reasonable for the ALJ to find 19 [these] inconsistenc[ies] undercut Plaintiff’s subjective complaints” and for the Commissioner “to 20 defend that finding.” (Id.) Thus, Defendant asserts the substantial justification standard is satisfied 21 related to the findings on Plaintiff’s statements. (Id. at 4-5) 22 In addition, Defendant argues that “[t]he ALJ reasonably settled in the middle ground between 23 the divergent medical opinions, finding that Plaintiff was less capable than three of the physicians 24 concluded and more capable in some regards than Plaintiff’s treating physician concluded.” (Doc. 33 25 at 5.) Defendant asserts: 26 The ALJ provided specific and legitimate reasons explaining why he concluded that record best comported with this narrow range of work and identified substantial 27 evidence supporting his findings. For example, the ALJ explained that Plaintiff’s treating physician did not explain the bases for his assessment of extremely limited 28 functioning, which was especially problematic given the medical evidence, Plaintiff’s demonstrated capabilities, the efficacy and conservative nature of Plaintiff’s 1 treatment, and the fact that Plaintiff’s treating physician appeared to rely on Plaintiff’s own reported assessment of his capabilities (AR 379–83) (supra). While 2 the Court came to a different conclusion, it was reasonable for the ALJ to find that the weight of the evidence showed Plaintiff was more capable than his treating physician 3 asserted. See 20 C.F.R. § 404.1527(c)(3), (4).

4 (Id. at 5.) Therefore, Defendant contends the substantial justification standard was also satisfied 5 related to the ALJ’s evaluation of the medical record and the opinion of Plaintiff’s treating physician. 6 (Id. at 5-6.) 7 As the Court previously observed, an ALJ may consider inconsistencies between a claimant’s 8 level of activity and his reported impairments, the treatment received, and the medical record when 9 evaluating a Plaintiff’s subjective statements. (See Doc. 29 at 6, 8-11.) Thus, as Defendant contends, 10 the ALJ acted reasonably in considering these factors. However, the analysis by the ALJ was contrary 11 to the standards set forth by the Regulations and Court. For example, the ALJ ignored portions of 12 Plaintiff’s testimony concerning the difficulty and limitations reported with activities of daily living. 13 (See Doc. 29 at 8.) The Court also noted the ALJ failed to “find that Plaintiff spent a ‘substantial’ part 14 of his day engaged in such activities.” (Doc. 29 at 9; see also Stubbs-Danielson v. Astrue, 539 F.3d 15 1169, 1175 (9th Cir. 2008) [noting an ALJ must make a determination as to whether a claimant’s 16 activities are transferrable to a workplace].) Further, the Court found the ALJ erred in characterizing 17 the treatment received as conservative, because “Plaintiff had carpal tunnel surgery during the 18 adjudicated period.” (Id. at 10.) Finally, although the Ninth Circuit determined and ALJ must 19 “specifically identify what testimony is credible and what evidence undermines the claimant's 20 complaints,” the ALJ failed to identify any conflicts with the objective findings in the record. (Id. at 21 11.) Because the analysis by the ALJ failed to comply with standards established by the Regulations 22 and the Ninth Circuit, the position was not substantially justified. Sampson, 103 F.3d at 921. 23 In addition, the Court concluded that “[t]he ALJ failed to carry the burden to identify specific 24 and legitimate reasons, supported by the record, to reject the limitations identified by Dr. Pistel.” (Doc. 25 29 at 16.) Importantly, Ninth Circuit determined that a court’s “holding that the agency’s decision... 26 was unsupported by substantial evidence is ... a strong indication that the ‘position of the United States 27 was not substantially justified.’” Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013), quoting 28 Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005) (omissions in original). The Court 1 explained, “Indeed, it will be only a decidedly unusual case in which there is substantial justification 2 under the EAJA even though the agency's decision was reversed as lacking in reasonable, substantial 3 and probative evidence in the record.” Thangaraja, 428 F.3d at 874. 4 In Meier, the Court observed that “the ALJ failed to offer specific and legitimate reasons, 5 supported by substantial evidence, for rejecting [a treating physician's] opinion that Meier was 6 incapable of working.” Id., 727 F.3d at 872. The Court concluded the “decision was not supported by 7 substantial evidence” in light of the ALJ’s flawed review of the medical record and analysis of the 8 claimant's subjective pain testimony. Id. Because the ALJ’s decision was not supported by substantial 9 evidence, the Ninth Circuit determined that it followed “the government's underlying action was not 10 substantially justified.” Id. Likewise, here, this Court found the ALJ mischaracterized the treatment 11 Plaintiff received as conservative, failed to address evidence in the record, failed to explain now the 12 activities performed were inconsistent with the limitations identified by his physician, and ignored 13 probative objective findings in the record. (See Doc. 29 at 14-16.) Consequently, in Meier, the Court 14 finds Defendant does not meet the burden to show the government’s position was substantially 15 justified in defending the ALJ’s flawed analysis and opinion. 16 B. Reasonableness of the Fees Requested 17 Defendant argues that even if Plaintiff is entitled to EAJA fees, the fee request is unreasonable. 18 (Doc. 33 at 6-9.) Defendant contends the hours reported were not reasonable and should be reduced to 19 “half the requested amount.” (Id. at 8.) 20 1. Time expended 21 Plaintiff’s counsel, Jonathan Peña, requests fees 57.5 hours of work on the action. (Doc. 31-1 at 22 1-2.) Plaintiff asserts, “The hours requested in Plaintiff’s petition are supported by itemized time 23 records, and constitute a reasonable amount of attorney time to have expended on this matter.” (Doc. 24 31 at 7, citing Thompson v. Colvin, 2015 WL 1767733, at *2 (E.D. Cal., Apr. 17, 2015) [awarding fees 25 for 63.4 hours of attorney time]; Vallejo v. Astrue, 2011 WL 2011 WL 4383686, *4 (E.D. Cal. Sept. 20, 26 2011); Schneider v. Colvin, 2016 WL 500595, at *4 (E.D. Cal., Feb. 9, 2016) [declining to conduct a 27 line-by-line analysis of petition, because 55.4 hours was represented a reasonable request].) 28 Defendant opposes the fee request, asserting that “Plaintiff has not met his burden to show that 1 it is reasonable to bill $11,889.28 for this case.” (Doc. 33 at 8.) Defendant contends the reported total 2 of 57.5 hours is “well in excess of those generally billed for a social security case in a district court.” 3 (Id. at 7, citing Costa v. Comm’r, 690 F.3d 1132, 1134 (9th Cir. 2012); Tasby v. Estes, 651 F.2d 287, 4 289-90 n.1 (5th Cir. 1981).) Further, Defendant contends the legal issues presented in this action “were 5 not novel, unusual, or complex. (Id. at 7.) Defendant also asserts the “summary of hours reflects large 6 chunks of time attributed (in unspecified part) to researching the run-of-the-mill legal issues here, 7 topics Plaintiff does not address in his opening brief, and excessive amounts of time drafting non- 8 complex and common filings.” (Id.) Thus, Defendant requests that the fee award be reduce to “half the 9 requested amount… for the work in this case.” (Id. at 8.) 10 The Ninth Circuit determined courts may not apply de facto caps limiting the number of hours 11 attorneys can reasonably expend on “routine” social security cases. See Costa v. Comm’r of Soc. Sec. 12 Admin., 690 F.3d 1132, 1133-37 (9th Cir. 2012) (“we question the usefulness of reviewing the amount 13 of time spent in other cases to decide how much time an attorney could reasonably spend on the 14 particular case before the court”). Instead, “courts should generally defer to the ‘winning lawyer’s 15 professional judgment as to how much time he was required to spend on the case.’” Id. at 1136, quoting 16 Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). Nevertheless, the Court has an 17 independent duty to review the evidence of hours worked and tasks undertaken to determine the 18 reasonableness of the fees requested for the case. Hensley, 461 U.S. at 433, 436-47. 19 In support of the fee request and his assertion that the hours reported were reasonable, Plaintiff 20 merely cited several cases arising in the Eastern District in which the Court awarded hours nearly equal 21 to or exceeding than those billed by Mr. Peña in this action: Thompson v. Colvin, 2015 WL 1767733, at 22 *2 (E.D. Cal., Apr. 17, 2015) (awarding fees for 63.4 hours of attorney time); Vallejo v. Astrue, 2011 23 WL 4383636, at *4 (E.D. Cal. Sept. 20, 2011) (awarding fees for 62.1 hours of attorney time); and 24 Schneider v. Colvin, 2016 WL 500595, at *4 (E.D. Cal., Feb. 9, 2016) (awarding 55.4 hours in fees). 25 (See Doc. 31 at 7.) Plaintiff makes no effort to explain how the facts before the Court in Thompson, 26 Vallejo, and Schneider are similar to the matter now before the Court. Indeed, it appears the cases may 27 be distinguished. 28 In Schneider, the Commissioner challenged the time expended and the Court determined the 1 55.4 hours awarded was reasonable “[c]onsidering the lengthy procedural and administrative history of 2 the case, the facts and nature of the medical evidence in question, and the size and scope of the record.” 3 Id., 2016 WL 500595, at *4. The Court observed: 4 The administrative record was over 1,700 pages, which is unusually large, and the case has a long procedural history: an ALJ rendered a decision in January 2010 5 which was appealed to the district court; the district court ordered the case remanded for additional proceedings; on remand, another hearing was held and an ALJ issued a 6 partially favorable decision in March 2013, which was then appealed to this court. This case thus involves over seven years of administrative and judicial proceedings 7 and medical evidence dating from 2003.

8 Id. The Court also noted the requested time “included briefing on Defendant’s Rule 59 motion.” Id. 9 Thus, the Court concluded the amount requested in fees was reasonable. Id. In contrast, here the 10 administrative record contained only one decision from an ALJ, there was not a prior remand, the entire 11 administrative record was less than 400 pages, and counsel did not face a Rule 59 motion. Despite 12 significantly less complicated procedural history and much smaller administrative record, the hours 13 reported by Mr. Peña exceed those found reasonable in Schneider. 14 Further, in Vallejo the Court found 62.1 hours incurred by counsel were reasonable, because 15 Plaintiff “explained the fact-intensive nature of this litigation and has described why his EAJA briefing 16 was time-consuming.” Id., 2011 WL 4383636, at *4. The Court noted 32.5 hours of this time were 17 related to the motion for fees under the EAJA, a significant partition of which were attributed to 18 “researching and addressing each of the twenty-nine cases within a lengthy footnote in defendant’s 19 opposition brief.” Id. Thus, in Vallejo less than 30 hours of the awarded time related to the merits of 20 the action—in which the sole issue presented to the Court related to “straightforward” issue of the 21 claimant’s credibility— and over half of the award related to the disputed fee award. See id. at *4-5. 22 Here, however, Plaintiff has neither faced a complicated challenge to the fee request, nor taken any 23 effort to explain why the briefing was time-consuming. 24 Not only the may the matter before the Court be distinguished from the cases cited by Plaintiff, 25 but the entries are presented in a “block” format, which bundles tasks in a block of time and “makes it 26 more difficult to determine how much time was spent on particular activities.” Welch v. Metro. Life 27 Ins., 480 F.3d 942, 948 (9th Cir. 2007). For example, counsel billed 3.0 hours on March 3, 2020, 28 indicating it was for: “Research ‘popeye’ biceps deformity and summarized medical evidence for 1 [Letter Brief].” (See Doc. 31-1 at 2.) However, the Court is unable to determine what amount of time 2 was expended on research and what amount of time was expended on the summary. This is 3 troublesome where Plaintiff did not cite any research related to the condition in the opening brief, and it 4 appears the research was not relevant to the issues presented. Similarly, with the block billing format 5 the Court is unable to determine the extent to which duplicated tasks are presented between the letter 6 brief and opening brief—as counsel bills for summarizing the medical evidence for both documents. 7 (See Doc. 31-1 at 2.) It also appears the time expended may be excessive, as counsel reports 3.75 hours 8 for preparation of the motion for EAJA fees and supporting documents, which includes standardized 9 language and no argument related to the reasonableness of the fees or the hours reported in this action. 10 (See Doc. 31 at 6-7.) Previously, this Court observed that with experienced counsel, such as Mr. Peña, 11 1.5 hours is a reasonable amount of time for preparation of a time sheet and a standard motion for 12 EAJA fees. See e.g., Lopez v. Astrue, 2012 WL 2052146, at *5 (E.D. Cal. June 6, 2012) (awarding 1.5 13 hours for the work related to the EAJA motion); Fontana v. Astrue, 2011 WL 2946179 at *3 (E.D. Cal. 14 July 21, 2011) (same). 15 The Ninth Circuit explained that, where the attorney presents time expended in “blocks,” the 16 Court may “simply reduce[] the fee to a reasonable amount.” Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 17 1121 (9th Cir. 2000); see also Welch, 480 F.3d at 948 (“We do not quarrel with the district court's 18 authority to reduce hours that are billed in block format”). Given the block billing format and 19 overbilling related to the EAJA motion that occurred, the Court exercises its discretion to reduce the 20 remaining reported time by 10 percent. See Moreno, 534 F.3d at 1112 (a district court may “impose a 21 small reduction, no greater than 10 percent—a ‘haircut’—based on its exercise of discretion”). The 22 Court finds the remaining 51.75 hours to be reasonable in light of the actions taken on the matter, 23 including the issues researched by counsel and documents drafted. 24 2. Amount to be awarded 25 Plaintiff requests an hourly rate of $206.77 for the work, which was completed in 2020 and 26 2021. (Doc. 31-1 at 1.) Defendant does not object to this rate. (See generally Doc. 33.) Notably, the 27 attorney hourly rate does not exceed the statutory maximum set by the Ninth Circuit in 2020 and 2021. 28 See “Statutory Maximum Rates Under the Equal Access to Justice Act,” available at 1 http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 (last visited July 26, 2021). 2 Consequently, the Court finds the requested hourly rate of $206.77 is reasonable. With the deductions 3 set forth above, Plaintiff’s counsel is entitled to an award of $10,700.35. 4 C. Assignment of the Fee Award 5 In his affidavit in support of the motion, Mr. Peña requests that the EAJA fee award be made 6 payable to counsel, pursuant to a fee agreement with Plaintiff. (See Doc. 31 at 5; see also Doc. 31-2 at 7 1.) In Astrue v. Ratliff, 560 U.S. 586 (2010) the Supreme Court determined that EAJA fees must be 8 made payable to the “prevailing party.” As a result, the payment is subject to a government offset to 9 satisfy any pre-existing debt owed by a claimant. See id., 560 U.S. at 592-93. 10 Under the Anti-Assignment Act, a claim against “the United States may not be assigned to a 11 third party unless [certain] technical requirements are met.” United States v. Kim, 806 F.3d 1161, 1169 12 (9th Cir. 2015); 31 U.S.C. § 3727. “[I]n modern practice, the obsolete language of the Anti-Assignment 13 Act means that the Government has the power to pick and choose which assignments it will accept and 14 which it will not.” Kim, 806 F.3d at 1169-70. In addition, the Anti-Assignment Act “applies to an 15 assignment of EAJA fees in a Social Security Appeal for disability benefits.” Yesipovich v. Colvin, 166 16 F.Supp.3d 1000, 1011 (N.D. Cal. 2015). 17 Because Plaintiff has assigned his rights to counsel (Doc. 31-2 at 1), the EAJA fees should be 18 made payable directly to Plaintiff’s counsel, subject to any government debt offset and the 19 government’s waiver of the Anti-Assignment Act requirements. See Yesipovich, 166 F.Supp at 1011; 20 see also Beal v. Colvin, 2016 U.S. Dist. LEXIS 124272 (N.D. Cal. Sept. 13, 2016) (holding where 21 there was “no information on whether plaintiff owes any debt to the government[,]… the EAJA fee 22 shall be paid directly to plaintiff's counsel, subject to any administrative offset due to outstanding 23 federal debt and subject to the government’s waiver of the requirements under the Anti-Assignment 24 Act”). If the government chooses to not accept the assignment, payment shall be made to Plaintiff and 25 mailed to his attorney. 26 IV. Conclusion and Order 27 As a prevailing party, Plaintiff is entitled to an award of attorney’s fees under the EAJA 28 because the ALJ’s decision and the Commissioner’s position in defending it were not substantially 1 justified. See 28 U.S.C. § 2412(d)(2)(H). With the deductions set forth above, the Court finds an 2 award of 51.75 hours is reasonable based on the tasks performed and results achieved. Based upon the 3 foregoing, the Court ORDERS: 4 1. Plaintiff’s motion for attorney’s fees (Doc. 31) is GRANTED in part, in the modified 5 amount of $10,700.35; 6 2. Defendant SHALL determine whether Plaintiff’s EAJA attorney fees are subject to any 7 offset and, if the fees are not subject to an offset, payment shall be made payable to 8 Plaintiff. If the Government decides to accept the assignment of fees, payment shall be 9 made payable to Counsel, Jonathan Peña; and 10 3. Payment SHALL be mailed to Plaintiff’s counsel of record, Jonathan Peña. 11

13 Dated: July 26, 2021 _ /s/ Jennifer L. Thurston 14 CHIEF UNITED STATES MAGISTRATE JUDGE

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