Alexander v. Astrue

Filing 21

ORDER granting 18 Motion for Attorney Fees. Plaintiff is awarded $6,870.90 in attorney fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. Signed by Judge David G Campbell on 11/28/12.(LAD)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Jill Ann Alexander,
Plaintiff,

10
11
12

No. CV11-02465-PHX-DGC
ORDER

v.
Michael J. Astrue, Commissioner of Social
Security,

13

Defendant.

14
15
16

Plaintiff has filed a motion for attorney fees and costs pursuant to the Equal

17

Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Doc. 18. The motion is fully briefed.

18

Docs. 18-20. No party has requested oral argument. For the reasons that follow, the

19

Court will grant the motion and award Plaintiff fees in the amount of $6,870.90.

20

I.

Background.

21

An administrative law judge (“ALJ”) denied Plaintiff’s application for social

22

security benefits at step four of the five-step evaluation process, finding that Plaintiff’s

23

residual functional capacity (“RFC”) did not preclude her from performing her past work

24

as a financial sales representative, educational course sales representative, customer

25

service representative, food service manager, waitress, and bartender. This decision

26

became Defendant’s final decision when the Appeals Council denied review. Plaintiff

27

brought this action for judicial review pursuant to 42 U.S.C. § 405(g). The Court

28

remanded the case to Defendant for further proceedings.

1

II.

Discussion.

2

“The EAJA creates a presumption that fees will be awarded to prevailing parties.”

3

Flores v. Shalala, 49 F.3d 562, 569 (9th Cir. 1995). Plaintiff is a prevailing party

4

because this matter was remanded pursuant to sentence four of the Social Security Act,

5

42 U.S.C. § 405(g). See Doc. 16; Gutierrez v. Barnhart, 274 F.3d 1255, 1257 (9th Cir.

6

2001) (“An applicant for disability benefits becomes a prevailing party for purposes of

7

the EAJA if the denial of her benefits is reversed and remanded regardless of whether

8

disability benefits ultimately are awarded.”); Flores, 49 F.3d at 567 (“If the district court

9

enters judgment reversing and remanding under sentence four, then the claimant must

10

apply for fees within 30 days of the date the judgment becomes final.”). The Court

11

should award reasonable attorney fees and costs under the EAJA unless Defendant shows

12

that its position with respect to the issue on which the district court based its remand was

13

“substantially justified.” 28 U.S.C. § 2412(d)(1)(A); see Lewis v. Barnhart, 281 F.3d

14

1081, 1083 (9th Cir. 2002).

15

A.

Was Defendant’s Position Substantially Justified?

16

Under the EAJA, “substantial justification” means that “‘the government’s

17

position must have a reasonable basis in law and fact.’” Shafer v. Astrue, 518 F.3d 1067,

18

1071 (9th Cir. 2008) (quoting Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir. 1998)).

19

“Where, as here, the ALJ’s decision was reversed on the basis of procedural errors, the

20

question is not whether [Defendant’s] position as to the merits of [Plaintiff’s] disability

21

claim was substantially justified. Rather, the relevant question is whether [Defendant’s]

22

decision to defend on appeal the procedural errors committed by the ALJ was

23

substantially justified.” Id. (emphasis in original).

24

Defendant argues that its decision to defend the ALJ’s position is substantially

25

justified because the Commissioner prevailed on eight of the nine issues raised by

26

Plaintiff in her appeal (Doc. 19 at 4-5),1 and the Court found no explicit error in the

27
1

28

Since the Court directed the ALJ to consider Plaintiff’s newly submitted
evidence on remand (Doc. 16 at 21), Plaintiff argues it also prevailed on this issue
-2-

1

ALJ’s determination, instead finding that the ALJ’s determination was “inconclusive.”

2

(Doc. 19 at 5).

3

At step four of the evaluation, Plaintiff had the burden of showing that she could

4

no longer perform her past relevant work. Lewis, 281 F.3d at 1083 (citing Pinto v.

5

Massanari, 249 F.3d 840, 844 (9th Cir. 2001)). The ALJ was required to examine

6

Plaintiff's “residual functional capacity and the physical and mental demands” of

7

Plaintiff's past relevant work. Id. The medical records were inconclusive as to the

8

amount of rest Plaintiff requires for her right arm, and the ALJ failed to determine how

9

much rest Plaintiff’s right arm would require. Doc. 16 at 20. The ALJ also failed to ask

10

the vocational expert whether there would be any jobs in the national economy that

11

Plaintiff could perform if she required 15 to 30 minutes of rest but was not limited to

12

sedentary work. The ALJ thus did not determine if Plaintiff’s required rest would

13

disqualify her for non-sedentary work. Id.

14

The Court finds that Defendant’s decision to defend the ALJ’s position on step

15

four did not have a reasonable basis in law and fact because the ALJ must make factual

16

findings to support the conclusion that Plaintiff’s RFC precluded her from performing her

17

past relevant work. The ALJ failed to “fully and fairly develop the record and to assure

18

that the claimant’s interests are considered,” Smolen v. Chater, 80 F.3d 1273, 1288 (9th

19

Cir. 1996) (quotations and citations omitted), and the Commissioner was not substantially

20

justified in defending the inconclusive record.

21

fundamental errors such as the ones in the present case’ lacked substantial justification.”

22

Shafer, 518 F.3d at 1071-72 (quoting Corbin, 149 F.3d at 1053).

Defendant’s “‘defense of basic and

23

B.

Is the Amount of the Requested Fee Award Reasonable?

24

Plaintiff’s counsel has filed an affidavit and an itemized statement of fees showing

25

that he worked 38.5 hours on this case, incurring fees and costs of $6,870.90. Doc. 18-4

26

at 1-6. Defendant does not dispute the reasonableness of the requested fee award.

27
28

(Doc. 20 at 2-3). The Court did not, however, remand because of the newly submitted
evidence, and thus this issue was not a basis for the Court’s decision to remand.
-3-

1

Doc. 19. Having reviewed counsel’s affidavit and the statement of fees, and having

2

considered the relevant fee award factors, see Hensley v. Eckerhart, 461 U.S. 424, 429-30

3

& n.3 (1983), the Court finds the requested fee award reasonable. The Court will grant

4

Plaintiff’s motion and award her $6,870.90 in attorney’s fees and costs.

5

C.

Is the Award Assignable to Plaintiff’s Counsel?

6

Plaintiff assigned her right to any EAJA award to Plaintiff’s counsel. Docs. 18-7

7

at 2. Defendant argues an EAJA award is payable only to a prevailing plaintiff, and that

8

awarding fees to Plaintiff’s counsel pursuant to the assignment would violate the Anti-

9

Assignment Act (“the Act”), 31 U.S.C. § 3727. Doc. 19 at 6-7.

10

In Astrue v. Ratliff, the Supreme Court interpreted § 2412(d) and held that EAJA

11

fees are payable to litigants and thus subject to offset where a litigant has outstanding

12

federal debts. 130 S. Ct. 2521, 2527 (2010). The Supreme Court noted that although the

13

government had a history of paying EAJA awards directly to attorneys in certain cases, in

14

2006 it discontinued that practice, making direct payments to the attorneys “only in cases

15

where the plaintiff does not owe a debt to the government and assigns the right to receive

16

the fees to the attorney.” Id. at 2529 (quotations and citations omitted). Since Ratliff,

17

district courts in other circuits have ordered fees paid directly to counsel so long as the

18

government is afforded an opportunity to offset any preexisting debt owed by the

19

plaintiff, and the plaintiff has assigned all rights in the fee award to counsel. See Meyer

20

v. Astrue, 2011 WL 4036398, at *3 (D. Minn. 2011). In this case, Plaintiff has assigned

21

all rights to any EAJA award to counsel (Doc. 18-7 at 2), and Plaintiff’s counsel submits

22

that he has verified with the U.S. Treasury Department that Plaintiff does not owe any

23

debt to the United States (Doc. 18 at 4; Doc. 18-6).

24

The Anti-Assignment Act (“the Act”) precludes the assignment of certain claims

25

against the United States unless the government waives the Act’s requirements. 31

26

U.S.C. § 3727. Under the Act, an assignment is permissible only (1) after a claim is

27

allowed, (2) when the amount has been decided, and (3) when a warrant for payment of

28

the claim has been issued. 31 U.S.C. § 3727(b). Plaintiff’s assignment was executed on
-4-

1

October 1, 2012, well before any EAJA claim was allowed or the amount decided.

2

Doc. 18-7 at 2-3. Since this assignment runs afoul of the Act, and the government does

3

not appear to waive the Act’s provisions, the Court finds that the assignment is invalid as

4

contrary to the Anti-Assignment Act. The Court will not order that the fees be paid to

5

Plaintiff’s counsel.

6

IT IS ORDERED:

7

1.

Plaintiff’s motion for attorney fees (Doc. 18) is granted.

8

2.

Plaintiff is awarded $6,870.90 in attorney fees and costs pursuant to the

9

Equal Access to Justice Act, 28 U.S.C. § 2412.

10

Dated this 28th day of November, 2012.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-5-