Thompson v. Astrue

Filing 30

ORDER that Plaintiff's Motion for Award of Attorney's Fees Pursuant to the Equal Access to Justice Act, doc. 22 , is GRANTED. FURTHER ORDERED that Plaintiff is awarded $10,605.54 in attorney's fees to be mailed to Plaintiff's counsel, Mark Caldwell, 1940 East Camelback Road, Suite 150, Phoenix, AZ 85016. Signed by Magistrate Judge Lawrence O Anderson on 11/20/2013.(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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v.
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Carolyn W. Colvin, Acting Commissioner)
of the Social Security Administration, )
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Defendant.
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Dawn Michelle Thompson

No. CV-12-714-PHX (LOA)
ORDER

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This matter is before the Court on Plaintiff’s Motion for Award of Attorney’s Fees

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Pursuant to the Equal Access to Justice Act (“EAJA”), Plaintiff’s Brief in Support of Motion

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for Award of Attorney’s Fees, and the Affidavit of Plaintiff’s Counsel Regarding Attorney’s

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Fees. (Docs. 22-24) Carolyn W. Colvin, the Acting Commissioner of the Social Security

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Administration (the “Commissioner”) filed a Response to Plaintiff’s Motion for Attorney

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Fees, stating she has no objection to Plaintiff’s requested attorney’s fees of $10,605.54.

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(Doc. 28)

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I. Background

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On August 14, 2009, Plaintiff filed applications for Social Security Disability

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Insurance Benefits and Supplemental Security Income under Titles II and XVI, respectively,

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of the Social Security Act (“Act”). See 42 U.S.C. §§ 401-433 and §§ 1381-1383c. (Doc. 20

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at 1) Plaintiff’s disability benefits requests were denied initially and on reconsideration.

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Thereafter, a hearing was held before Administrative Law Judge (“ALJ”) Patrick Kilgannon.

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The ALJ found Plaintiff was not disabled within the meaning of the Act. This decision

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became the final decision of the Commissioner when the Social Security Appeals Council

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denied Plaintiff’s request for review. Plaintiff then sought review in this District Court. On

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July 2, 2013, the Court entered an order, remanding this matter for an award of benefits and

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concluding the ALJ committed legal error when he failed to provide specific and legitimate

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reasons supported by substantial evidence in the record for rejecting the opinions of Drs.

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Feldman and Torzala. (Doc. 20 at 14) The Clerk of Court entered judgment on the same day.

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(Doc. 21) Plaintiff now seeks an award of attorney’s fees under the EAJA.

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II. Attorney’s Fees under the EAJA

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In any action brought by or against the United States except one sounding in tort, the

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EAJA, 28 U.S.C. § 2412, provides that “a court shall award to a prevailing party other than

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

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United States was substantially justified.” 28 U.S.C. § 2412(d)(1)(A). The EAJA creates a

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presumption that fees will be awarded to the prevailing party unless the Government

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establishes that its position was “substantially justified.” Thomas v. Peterson, 841 F.2d 332,

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335 (9th Cir. 1988) (citation omitted). Substantially justified means “justified in substance

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or in the main - that is, justified to a degree that could satisfy a reasonable person.” Pierce

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v. Underwood, 487 U.S. 552, 565 (1988) (internal citations omitted). A substantially justified

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position must have a reasonable basis both in law and fact. Gutierrez v. Barnhart, 274 F.3d

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1255,1258 (9th Cir. 2001); Thomas, 841 F.2d at 335.

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The Government bears the burden of establishing substantial justification. Gutierrez,

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274 F.3d at 1258. In determining whether the Government’s position was substantially

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justified, a district court considers both the Government’s position during the litigation and

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“the action or failure to act by the agency upon which the civil action is based.” 28 U.S.C.

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§ 2412(d)(2)(D). Thus, a court considers: “first, whether the government was substantially

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justified in taking its original action; and second, whether the government was substantially

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justified in defending the validity of the action in court.” Gutierrez, 274 F.3d at 1258

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(citation omitted).
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III. Analysis

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In her Brief in Support of Motion for Award of Attorney’s Fees, Plaintiff argues she

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is the prevailing party in this action, and entitled to attorney’s fees under the EAJA. Plaintiff

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further argues the Commissioner cannot meet her burden of showing the Social Security

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Administration’s position in this case was substantially justified. In Plaintiff’s counsel’s

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affidavit, counsel itemizes the services he performed for Plaintiff. Based on the hours

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expended and the adjusted hourly rate permitted under the EAJA, counsel requests total

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attorney’s fees of $10,605.54. (Doc. 24-1 at 2)

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As noted above, the Commissioner filed a Response to Plaintiff’s Motion for Attorney

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Fees, indicating she does not object to Plaintiff’s motion for fees under the EAJA. (Doc. 28)

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Absent any opposition, the Court accepts Plaintiff’s argument she is entitled to an award of

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attorney’s fees. The Court finds the total fees requested, including the hours expended and

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the hourly rates, are reasonable.

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Lastly, Plaintiff requests, pursuant to Astrue v. Ratliff, 560 U.S. 586, 130 S.Ct. 2521

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(2010), that the check for EAJA fees be made payable to Plaintiff, but that it be mailed to

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Plaintiff’s counsel’s office. (Doc. 23 at 9) In Ratliff, the United States Supreme Court held

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that EAJA fees are payable to the prevailing party, not the prevailing party’s attorney.

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Ratliff, 130 S.Ct. at 2524. In so holding, the Court noted the “practical reality that attorneys

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are the beneficiaries and, almost always, the ultimate recipients of the fees that the statute

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awards to the ‘prevailing part[ies]’” because of “nonstatutory (contractual and other

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assignment-based) rights that typically confer upon the attorney the entitlement to payment

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of the fees award the statute confers on the prevailing litigant.” Id. at 2529 (quoting Venegas

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v. Mitchell, 495 U.S. 82, 86 (1990)). Plaintiff’s request regarding the check will, therefore,

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be granted.

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Accordingly,

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IT IS ORDERED that Plaintiff’s Motion for Award of Attorney’s Fees Pursuant to

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the Equal Access to Justice Act, doc. 22, is GRANTED.

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IT IS FURTHER ORDERED that Plaintiff is awarded $10, 605.54 in attorney’s fees

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to be mailed to Plaintiff’s counsel, Mark Caldwell, 1940 East Camelback Road, Suite 150,

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Phoenix, AZ 85016.

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DATED this 20th day of November, 2013.

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