Kinzer v. Astrue

Filing 41

ORDER granting 33 Plaintiff's Application/Motion for Attorney Fees. Plaintiff is awarded $19,800.57 in attorneys' fees. Signed by Senior Judge James A Teilborg on 4/6/15.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Sheila Kinzer,

No. CV-11-00328-PHX-JAT
Plaintiff,

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v.

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ORDER

Michael J. Astrue,

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Defendant.

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

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Equal Access to Justice Act (Doc. 33). The Court now rules on the motion.

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I.

Background

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On April 27, 2009, an Administrative Law Judge (“ALJ”) denied Plaintiff’s

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request for Social Security benefits. After exhausting her administrative appeals, Plaintiff

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filed this lawsuit in appeal of the ALJ’s decision. The Court affirmed the ALJ’s finding

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that Plaintiff was not disabled. Plaintiff appealed to the Ninth Circuit Court of Appeals

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(“Court of Appeals”), which reversed the Court’s decision and remanded this case with

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instructions for the Court to remand to the Commissioner of Social Security (the

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“Commissioner”) for further proceedings.
Plaintiff has now filed an application for attorneys’ fees under the Equal Access to

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Justice Act (“EAJA”). (Doc. 33).

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II.

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Legal Standard
The Court of Appeals has succinctly stated the legal standard for an award of fees

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under EAJA:

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EAJA provides that a court shall award to a prevailing party
other than the United States fees and other expenses incurred
by that party in any civil action unless the court finds that the
position of the United States was substantially justified or that
special circumstances make an award unjust. It is the
government’s burden to show that its position was
substantially justified. Substantial justification means justified
in substance or in the main—that is, justified to a degree that
could satisfy a reasonable person. Put differently, the
government’s position must have a reasonable basis both in
law and fact. The position of the United States includes both
the government’s litigation position and the underlying
agency action giving rise to the civil action. Thus, if the
government’s underlying position was not substantially
justified, we must award fees and need not address whether
the government’s litigation position was justified.

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Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014) (citations, quotation marks, and

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alterations omitted).

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III.

Analysis

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The Government correctly points out that the standard of review applied to the

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Commissioner’s decision to deny benefits is not the same as the distinct question of

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whether the Government’s position in this case was substantially justified for EAJA

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purposes. (Doc. 37 at 2). A reviewing court “may set aside a denial of disability benefits

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only if it is not supported by substantial evidence or if it is based on legal error.” Thomas

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v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Thus, an ALJ’s decision, if not legally

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erroneous, need be supported only by substantial evidence in the record. This contrasts

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with the EAJA standard for an award of attorneys’ fees, under which the Government

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must show that its position was “substantially justified.”

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The Government argues that its position was substantially justified because

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although ultimately incorrect, it had a reasonable basis in the law. (Doc. 37 at 4-5). The

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ALJ discounted the opinions of Drs. Ross and Biscoe, Plaintiff’s treating physicians,

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finding that their opinions were not supported by the other evidence in the record. The

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ALJ failed to specifically cite the objective record evidence supporting the discounting of

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these opinions, but on appeal, the Court found substantial record evidence supported the

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ALJ’s decision. The Court of Appeals concluded that the ALJ committed legal error by

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failing to specifically cite the record evidence justifying the discounting of these

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opinions. (Doc. 29-1 at 2-3).

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Thus, although the Government contends that the ALJ’s position was substantially

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justified, the Court of Appeals has determined that the ALJ’s position was erroneous as a

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matter of law.1 The fact that the ALJ’s decision to discount the opinions of Drs. Ross and

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Biscoe is supported by substantial record evidence is irrelevant in light of the Court of

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Appeals’ ruling, and therefore the Government’s efforts to demonstrate the

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reasonableness of the ALJ’s decision are to no avail. See (Doc. 37 at 5-10). Therefore, the

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Court must conclude that the Government’s position was not substantially justified. The

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Court will award Plaintiff $19,800.57 in attorneys’ fees.2

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III.

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Conclusion
For the foregoing reasons,

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The Court of Appeals held that the ALJ committed three errors, (Doc. 29-1 at 23), but this error is itself sufficient to render the Government’s position not substantially
justified.
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Plaintiff asserts in her reply that she is entitled to EAJA fees for “the pursuit of
EAJA fees” and cites Gisbrecht v. Barnhart, 535 U.S. 789 (2002) for this proposition.
Plaintiff does not provide a pincite to the particular pages in Gisbrecht that support her
argument. This failure renders Plaintiff’s argument inadequate and the Court will not
award fees incurred in preparing the reply in support of Plaintiff’s motion. It is Plaintiff’s
responsibility to provide adequate citations to legal authority. Nevertheless, the Court has
reviewed Gisbrecht and cannot locate such a citation for counsel.
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IT IS ORDERED granting Plaintiff’s Application for Attorney Fees Under the
Equal Access to Justice Act (Doc. 33).

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IT IS FURTHER ORDERED awarding Plaintiff $19,800.57 in attorneys’ fees.

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This award shall be payable directly to Plaintiff and is subject to offset to satisfy any

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preexisting debt that Plaintiff owes the United States pursuant to Astrue v. Ratliff, 560

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U.S. 586, 594 (2010).

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Dated this 6th day of April, 2015.

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