Copley v. Astrue

Filing 28

ORDER granting Plaintiff's 23 Motion for Attorney Fees and Costs. Plaintiff is awarded $6,559.11 pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. Signed by Judge David G Campbell on 11/03/11.(ESL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,

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No. CV10-1410-PHX-DGC

Lori A. Copley,

ORDER

vs.
Michael J. Astrue, Commissioner of Social
Security Administration,

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Defendant.

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Plaintiff filed a claim with the Social Security Commission for Disability and

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Supplemental Security Income benefits under Title XVI of the Social Security Act.

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Doc. 1. After a hearing on January 22, 2010, Administrative Law Judge (“ALJ”) M.

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Kathleen Gavin found that Plaintiff had a severe impairment due to fibromyalgia. Doc.

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12-3 at 11.1 After a residual functional capacity (“RFC”) assessment, however, Judge

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Gavin found that Plaintiff was capable of work and denied Plaintiff’s claim. Doc. 12-3.

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Plaintiff appealed, and the Court found that the ALJ had failed to consider the combined

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effects of Plaintiff’s symptoms on her ability to perform work in a realistic setting. Doc.

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21 at 5. The Court remanded for further proceedings on this issue. Doc. 21 at 5-6.

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Plaintiff has filed a motion requesting attorney’s fees and costs pursuant to the

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Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Doc. 23. The motion has been

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The Court’s citations to the record reflect the page numbers generated at the top
of a PDF document by the Court’s Electronic Case Filing system, not page numbers
appearing on original exhibits.

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fully briefed. Docs. 25, 27. For the reasons stated below, the Court will grant Plaintiff’s

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motion and award Plaintiff attorneys’ fees in the amount of $6,209.11 plus $350 in costs,

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for a total of $6,559.11.

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The EAJA “authorizes federal courts to award attorneys’ fees, court costs, and

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other expenses when a party prevails against the United States, although fee-shifting is

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not mandatory.” Hardisty v. Astrue, 592 F.3d 1072, 1076 (9th Cir. 2010). Plaintiff is a

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prevailing party because denial of her benefits has been remanded for further

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proceedings. See Gutierrez v. Barnhart, 274 F.3d 1255, 1257 (9th Cir. 2001). The Court

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should award reasonable attorneys’ fees under the EAJA unless Defendant shows his

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position in this case was “substantially justified or that special circumstances make an

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award unjust.” 28 U.S.C. § 2412(d)(1)(A); see Gutierrez, 274 F.3d at 1258.

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Defendant does not contend that an award of fees in this case would be unjust.

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Instead, Defendant argues that denial of benefits was “substantially justified.” Doc. 24 at

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1. To determine if the Commission’s finding was “substantially justified,” the Court

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must initially consider any procedural issues that led to remand. See Corbin v. Apfel, 149

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F. 3d 1051, 1055 (9th Cir. 1998); Flores v. Shalala, 49 F. 3d 562, 566 (9th Cir. 1995)

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(“the district court should, at least initially, . . . consider[] whether the Secretary was

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substantially justified with respect to the procedural issue”). Here, the Court found that

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the ALJ failed to consider the combined effects of Plaintiff’s symptoms on her ability to

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perform work in a realistic setting as required under 42 U.S.C. § 432(d)(B). Doc. 21 at 5.

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Defendant argues that the ALJ did not find Plaintiff credible and that it was reasonable

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for the ALJ to conclude that Plaintiff exaggerated her pain and other symptoms. Doc. 24

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at 4-6. The error here, however, was not in the ALJ’s assessment of Plaintiff’s credibility

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or her pain level, but the ALJ’s failure to consider the combined effect of Plaintiff’s pain

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and other symptoms – to the extent she found them credible – upon her ability to

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perform work “during a standard work week in a realistic setting.”

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fundamental analysis, it is not possible to find that the Commission’s finding was

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Without this

AIt follows a fortiori [Defendant=s] defense of the ALJ=s

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“substantially justified.”

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procedural error[] was not substantially justified, and [Plaintiff] is entitled to attorneys=

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fees under the EAJA.@ Shafer v. Astrue, 518 F.3d 1067, 1072 (9th Cir. 2008); see Corbin

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v. Apfel, 149 F.3d 1051, 1052-53 (9th Cir. 1998) (the defense of Abasic and fundamental

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errors@ is Adifficult to justify@).

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Plaintiff=s counsel, Eric G. Slepian, has filed an affidavit (Doc 23-1, App. C) and

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an itemized statement of fees (Doc 23-1, App. A) showing that he worked 32.9 hours on

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this case. Plaintiff’s counsel has also requested compensation for an additional 1.9 hours

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for preparing Plaintiff’s Reply, for a total of $6,209.11 in fees (34.8 hours at $178 per

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hour), plus $350 in costs. Doc. 27 at 6. Defendant does not object to paying costs and

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has not disputed that the fees are reasonable. Having reviewed the affidavit and the

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statement of fees, and having considered the relevant fee award factors, see Hensley v.

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Eckerhart, 461 U.S. 424, 429-30 & n. 3 (1983), the Court finds that the amount of the

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requested fee award is reasonable.

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IT IS ORDERED:

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Plaintiff=s motion for attorney=s fees and costs (Doc. 23) is granted.

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Plaintiff is awarded $6,559.11 pursuant to the Equal Access to Justice Act, 28

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U.S.C. ' 2412.

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Dated this 3rd day of November, 2011.

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