Smith v. Astrue

Filing 36

ORDER - IT IS ORDERED 1. Plaintiff's motion for award of attorneys fees of $7,945.46 (Doc. 31 ) is granted. 2. Pursuant to the contractual agreement between Plaintiff and his attorney Mark Caldwell (Doc. 32 -1), the Court also grants Mr. Caldwell's request that the attorney's fees, payable to Plaintiff, be sent to Mr. Caldwell's law offices. Signed by Judge David G Campbell on 2/27/13. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jerry Smith,

No. CV-11-2524-PHX-DGC
Plaintiff,

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v.

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ORDER

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

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Defendant.

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On January 1, 2013, Plaintiff filed a motion for an award of attorney’s fees
pursuant to the Equal Access to Justice Act (“EAJA”). Doc. 32. The EAJA provides:

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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 (other than
cases sounding in tort), including proceedings for judicial review of
agency action, brought by or against the United States in any court having
jurisdiction of that action, unless the court finds that the position of the
United States was substantially justified or that special circumstances
made an award unjust.

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28 U.S.C. § 2412(d)(1)(A) (emphasis added). A party seeking an award of fees and other

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expenses must submit to the court an application “within thirty days of final judgment in

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the action.” Id. § 2412(d)(1)(B). Final judgment “means a judgment that is final and not

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appealable.” Id. § 2412(d)(1)(G). Plaintiff is a prevailing party because this matter was

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remanded pursuant to sentence four of the Social Security Act, 42 U.S.C. § 405(g).

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Plaintiff appropriately applied for attorney’s fees within thirty days after the appeal

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period closed. Doc. 32 at 3.1

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These conditions being met, the EAJA creates a presumption that a court will

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award attorney’s fees to a prevailing party. Flores v. Shalala, 49 F.3d 562, 567 (9th Cir.

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1995) (citing Thomas v. Peterson, 841 F.2d 332, 335 (9th Cir. 1988)).

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attorney’s fees are not available if the position of the United States is “substantially

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justified.” 28 U.S.C. § 2412(d)(1)(A). The Supreme Court has explained that the

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government is substantially justified if its position has a “reasonable basis both in law and

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fact.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). The Ninth Circuit has clarified

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the inquiry as whether the commissioner has shown that “his position with respect to the

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issue on which the district court based its remand was substantially justified.” Lewis v.

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Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002); see also Corbin v. Apfel, 149 F.3d 1051,

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1053 (9th Cir. 1998) (finding that the “government’s position at each stage must be

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‘substantially justified’”).

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errors” will often lack substantial justification. Id.

However,

The Commissioner's defense of “basic and fundamental

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This Court found that the Administrative Law Judge (“ALJ”) erroneously rejected

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the medical opinion of Plaintiff’s treating physician, Dr. Levy, which showed that

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Plaintiff was incapable of work. Doc. 29 at 5. The ALJ is required to make “‘findings

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setting forth specific legitimate reasons for [rejecting the treating physician’s testimony]

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that are based on substantial evidence in the record.’” Thomas v. Barnhart, 278 F.3d

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947, 957 (9th Cir. 2002) (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th

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Cir.1989)) (emphasis added).

The ALJ rejected Dr. Levy’s 2008 medical opinion

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District Courts may remand under “sentence four” or “sentence six” of section
405(g). Only sentence four remands—those in which the District Court “makes a
determination as to the correctness of the Secretary's position”—qualify plaintiffs as
“prevailing parties” for an award of attorneys' fees. Flores v. Shalala, 49 F.3d 562, 568
(9th Cir. 1995) (citing Shalala v. Schaefer, 509 U.S. 292 (1993)); see also Gutierrez v.
Barnhart, 274 F.3d 1255, 1257 (9th Cir. 2001) (“An applicant for disability benefits
becomes a prevailing party . . . if the denial of her benefits is reversed and remanded
regardless of whether disability benefits ultimately are awarded.”). In this case the Court
issued a remand under sentence four. Doc. 29 at 17–18.
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because: (1) Plaintiff’s course of treatment was conservative and therefore inconsistent

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with allegations of disabling pain; (2) Dr. Levy based his opinion on Plaintiff’s subjective

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complaints; (3) There was other medical evidence that conflicted with Dr. Levy’s

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findings; (4) Dr. Levy’s later assessment, in 2010, suggested Plaintiff was capable of

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working. Doc. 29 at 5–12.

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This Court found that these reasons were insufficient for rejecting Dr. Levy’s 2008

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opinion.

Id. at 10.

Moreover, this Court now finds that the government was not

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substantially justified in its position in this case. First, while the ALJ may consider

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evidence of a course of treatment that was inconsistent with allegations of disabling pain,

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this evidence is not enough to constitute “substantial evidence” for rejecting Dr. Levy’s

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opinion. Id. at 8. Second, the ALJ was unreasonable in finding that Dr. Levy’s reliance

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on Plaintiff’s subjective complaints invalidated his medical opinion.

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permitted to rely on Plaintiff’s subjective complaints in forming his medical opinion,

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particularly when he also conducted clinical tests. Id. Third, the ALJ was unreasonable

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in giving preference to the opinions of non-treating physicians and failing to explain why

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those opinions were more reliable than Dr. Levy’s. Id. at 10. Finally, the ALJ was

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unreasonable in interpreting Dr. Levy’s 2010 opinion as saying that Plaintiff was capable

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of working. Dr. Levy’s 2010 opinion indicated that Plaintiff suffered pain that interfered

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with his ability to work, as did the 2008 opinion, and a vocational expert affirmed that

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based on this opinion Plaintiff would not be able to work. Id. at 11. In light of these

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findings, Defendant was not substantially justified in defending the ALJ’s decision that

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Dr. Levy’s medical opinion, as Plaintiff’s treating physician, should be rejected.2

Dr. Levy was

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Because the issue of the acceptability of Dr. Levy’s medical opinion was “the
issue on which the district court based its remand,” Lewis, 281 F.3d at 1083, and the
“government’s position at each stage must be ‘substantially justified,’” Corbin, 149 F.3d
at 1053, the Court need not address whether the government was substantially justified in
arguing that Plaintiff’s symptom testimony was not credible.
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Plaintiff's counsel, Mark Caldwell, has filed an affidavit (Doc. 33) and an itemized

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statement of fees (Doc. 33-1) showing that he worked on this case 3.2 hours in 2011 and

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40.1 hours in 2012, and that the fees total $7,945.46 ($180.59 for 2011 hours, and

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$183.73 for 2012 hours). Defendant argues that much of Plaintiff’s work was duplicative

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and unnecessary because many of the arguments presented in Plaintiff’s opening brief

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were also made in the memorandum presented to the Social Security Appeals Council.

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Doc. 34 at 6. Defendant therefore requests that the hours for 2012 be reduced from 40.1

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to 30. Id. at 7.

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“By and large, the court should defer to the winning lawyer’s professional

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judgment as to how much time he was required to spend on the case.” Moreno v. City of

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Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). While some of Plaintiff’s arguments

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may have duplicated arguments from earlier memoranda, such duplication is often

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inevitable and necessary. Id. The requested hours are not outside the scope of what is

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normal for a case of this nature.3 Therefore, 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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1.

granted.

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Plaintiff’s motion for award of attorney’s fees of $7,945.46 (Doc. 31) is

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Pursuant to the contractual agreement between Plaintiff and his attorney
Mark Caldwell (Doc. 32-1), the Court also grants Mr. Caldwell’s request

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See, e.g., Alexander v. As true, No. CV11-2465-PHX-DGC, 2012 WL 5989450
(D. Ariz. Nov. 29, 2012) (awarding $6,870.90); Sharp v. As true, No. CV-09-1841-PHXDGC, 2010 WL 1759287 (D. Ariz. Apr. 30, 2010) (awarding $8,577.55).

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that the attorney’s fees, payable to Plaintiff, be sent to Mr. Caldwell’s law

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offices.

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Dated this 27th day of February, 2013.

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