Sheridan v. Colvin

Filing 39

ORDER denying 32 Motion/Application for Attorney Fees. See order for details. Signed by Senior Judge Frederick J Martone on 4/12/2016.(LMR)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tammy Lynn Sheridan, Plaintiff, 10 11 vs. 12 Michael J. Astrue, 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-12-277-PHX-FJM ORDER 15 16 The court has before it plaintiff’s Motion for an award of fees under 28 U.S.C. 17 §2412(d)(1)(A) (doc. 32), the defendant’s Response (doc. 34), and plaintiff’s Reply (doc. 18 38). 19 A prevailing party will be awarded fees under 28 U.S.C. §2412(d)(1)(A) “unless the 20 court finds that the position of the United States was substantially justified or that special 21 circumstances make an award unjust.” 22 Here, we affirmed the decision of the Commissioner denying disability benefits in a 23 comprehensive ten page order. Order of Mar. 22, 2013 (doc. 21). We concluded that 24 substantial evidence in the record supported the ALJ’s conclusion that plaintiff was not 25 disabled. Id. at 10. 26 Two members of an appellate panel disagreed and remanded to allow the ALJ to 27 provide a sufficient explanation for the denial of benefits. Mem. Dispo. of Nov. 17, 2015 at 28 1 5 (doc. 28). Circuit Judge Bea disagreed with the panel majority and filed a dissent, 2 concluding that the ALJ offered clear and convincing evidence for discounting the credibility 3 of plaintiff’s self-reports, and that a potential alternative interpretation did not justify 4 upsetting the ALJ’s findings. Mem. Dispo. of Nov. 17, 2015 at 5 (Bea, J., dissenting) (doc. 5 28). 6 There is obviously a good faith disagreement here on the merits. Two Article III 7 judges believe there was error. Two Article III judges believe there was no error. We need 8 not belabor the details of their disagreement. We do not decide here who is “right” and who 9 is “wrong.” The majority of the panel has spoken on the merits. But we do have to decide 10 whether the government’s position was substantially justified. I believe any fair reading of 11 this court’s Order of Mar. 22, 2013 (doc. 21) and Circuit Judge Bea’s dissent precludes a 12 finding that the government’s position was not substantially justified. The government has 13 met its burden of showing that its position was indeed substantially justified. To hold 14 otherwise on this record would turn 28 U.S.C. §2412(d)(1)(A) into an automatic fee shifting 15 statute, which it plainly is not. 16 17 18 Accordingly, it is ORDERED DENYING plaintiff’s Application for Attorney’s fees. (Doc. 32). DATED this 12th day of April, 2016. 19 20 21 22 23 24 25 26 27 28 -2-

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