Silver v. Astrue

Filing 23

ORDER granting 20 Motion for Attorney Fees; Plaintiff is awarded $6,948.86 in attorneys' fees and $350.00 in costs. Signed by Judge David G Campbell on 7/22/2013.(DGC, nvo) *Modified to add omitted text on 7/23/2013* (REW).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Timothy L. Silver,

No. CV-12-00540-PHX-DGC

Plaintiff,

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ORDER

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v.

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Carolyn W. Colvin, Acting Commissioner
of Social Security Administration,

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Defendant.

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Plaintiff has filed a motion for attorney’s fees pursuant to the Equal Access to

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Justice Act (“EAJA”), 28 U.S.C. § 2412. Doc. 20. A response has been filed, Doc. 21,

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but a reply has not been filed. The Court will grant the motion.

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I.

Background.

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

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security benefits, finding that Plaintiff was not disabled within the meaning of the Social

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Security Act. Doc. 1 at 2. That decision became Defendant’s final decision when the

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Appeals Council denied review. Id. Plaintiff brought an action for judicial review in this

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Court pursuant to 42 U.S.C. § 405(g). Id. The Court ruled in favor of Plaintiff and

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remanded the case to Defendant for further proceedings. Doc. 19 at 13.

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II.

Legal Standard

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28 U.S.C. § 2412(d)(1)(A) provides that “a court shall award to a prevailing party

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other than the United States fees and other expenses . . . unless the court finds that the

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position of the United States was substantially justified or that special circumstances

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made an award unjust.” “An applicant for disability benefits becomes a prevailing party

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for purposes of the EAJA if the denial of her benefits is reversed and remanded

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regardless of whether disability benefits ultimately are awarded.” Gutierrez v. Barnhart,

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274 F.3d 1255, 1257 (9th Cir. 2001). In the Ninth Circuit, “attorney's fees are to be

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awarded to a party winning a sentence four remand unless the commissioner shows that

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

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substantially justified.” Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir.2002) (internal

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citations and quotations omitted). The Supreme Court has stated that “a position can be

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justified even though it is not correct, and we believe it can be substantially . . . justified

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if a reasonable person could think it correct, that is, if it has a reasonable basis in law and

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fact.” Pierce v. Underwood, 487 U.S. 552, 566 n. 2 (1988).

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II.

Analysis.

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The ALJ rejected the claim because Plaintiff’s impairment was not medically

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equal to a listed impairment, Plaintiff had the RFC to perform light work, and Plaintiff

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was capable of adjusting to different work. Doc 19 at 3. In making these findings, the

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ALJ discredited Plaintiff’s subjective testimony, his mother’s testimony, and a nurse

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practitioner’s testimony. Id. at 3, 6, 11. The Court found that the ALJ failed to present

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“specific, clear and convincing reasons” to justify finding Plaintiff’s testimony not

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credible. Doc. 19 at 4 (citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)).

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The Court also found that the ALJ did not properly discredit the mother’s and nurse

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practitioner’s testimony. Doc. 19 at 6, 11.

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A.

Was Defendant’s Position Substantially Justified?

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Defendant argues that an award of attorney’s fees should be denied because her

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position was substantially justified. Doc. 21 at 2. The Court disagrees. Defending

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“basic and fundamental [procedural] errors” is not substantially justified.

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Astrue, 518 F.3d 1067, 1071-72 (9th Cir. 2008) (holding the ALJ committed fundamental

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error by discrediting Claimant’s testimony without giving clear and convincing reasons
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Shafer v.

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and that the Commissioner was not substantially justified in defending it); see also Jager

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v. Astrue, 290 Fed.Appx. 27, 28 (9th Cir. 2008). “Where, as here, the ALJ’s decision was

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reversed on the basis of procedural errors, the question is not whether [Defendant’s]

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position as to the merits of [Plaintiff’s] disability claim was substantially justified.

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Rather, the relevant question is whether [Defendant’s] decision to defend on appeal the

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procedural errors committed by the ALJ was substantially justified.” Shafer, 518 F.3d at

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1071-72 (emphasis original). A court should not need to speculate as to the reasons the

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ALJ rejected the claimant’s allegations. Corbin v. Apfel, 149 F.3d at 1052 (holding that

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the Commissioner was not substantially justified in defending an ALJ’s decision where

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he rejected Claimant’s testimony without specific findings).

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The ALJ in this case committed the same errors as in Shafer and Corbin. The ALJ

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offered only bare assertions as to why Plaintiff’s testimony was inconsistent with the

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RFC. Doc 19 at 5. The ALJ did provide a detailed reiteration of the reports and opinions

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in the record, but failed to offer an analysis on how the record undermined the Plaintiff’s

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credibility. Id. Just as the Commissioner was not substantially justified in defending the

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errors in Shafer and Corbin, Defendant was not substantially justified in defending this

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case.1

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B.

Is the Amount of the Requested Fee Award Reasonable?

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Plaintiff’s counsel submitted an itemized statement showing 37.7 hours were

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worked and $350 of costs were incurred. Doc. 20-1 at 3, 6-7. Having reviewed counsel’s

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statement and considered the fee award factors, see Hensley v. Eckerhart, 461 U.S. 424,

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429-30 (1983), the Court finds the requested amounts to be reasonable.2

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IT IS ORDERED:

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1.

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Plaintiffs motion for attorney fees (Doc. 20) is granted.

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Whether the Commissioner was substantially justified in defending the ALJ’s
decision on the mother’s and nurse practitioner’s testimony will not be reached because
this finding is dispositive.
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Pursuant to Defendant’s argument (Doc. 21 at 10), attorney’s fees are to be paid
to Plaintiff, not counsel. See Astrue v. Ratliff, 130 S. Ct. 2521, 2529 (2010).
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Plaintiff is awarded $6,948.86 in attorney’s fees and $350.00 in costs
pursuant to Equal Access to Justice Act, 28 U.S.C. § 2412.

Dated this 22nd day of July, 2013.

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