Chavez v. Colvin

Filing 43

ORDER granting Plaintiff's 36 Motion for Attorney Fees. Plaintiff is awarded $7,278.93 pursuant to 28 U.S.C. § 2412. Signed by Judge David G Campbell on 8/29/2014.(LFIG)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Julie Ann Chavez, No. CV-12-01124-PHX-DGC Plaintiff, 10 11 v. 12 ORDER Carolyn W. Colvin, 13 Defendants. 14 15 Plaintiff brought this action for judicial review pursuant to 42 U.S.C. § 405(g) 16 after her application for disability benefits was denied. Doc. 1. The Court reversed 17 Defendant’s decision and remanded the case for further proceedings. Doc. 33. 18 Plaintiff has filed a motion for attorney’s fees pursuant to the Equal Access to 19 Justice Act, 28 U.S.C. § 2412 (“EAJA”). Doc. 36. The motion is fully briefed and no 20 party has requested oral argument. For reasons that follow, the Court will grant the 21 motion and award Plaintiff attorney’s fees in the amount of $7,278.93. 22 “The EAJA creates a presumption that fees will be awarded to prevailing parties.” 23 Flores v. Shalala, 49 F.3d 562, 567 (9th Cir. 1995). Plaintiff is a prevailing party 24 because this matter was remanded pursuant to sentence four of the Social Security Act, 25 42 U.S.C. § 405(g). 26 Gutierrez v. Barnhart, 274 F.3d 1255, 1257 (9th Cir. 2001). The Court should award 27 reasonable attorney’s fees under the EAJA unless Defendant shows that her position in 28 this case was “substantially justified or that special circumstances make an award unjust.” Doc. 28; see Shalala v. Schaefer, 509 U.S. 292, 301 (1993); 1 28 U.S.C. § 2412(d)(1)(A); see Gutierrez, 274 F.3d at 1258. A position is substantially 2 justified “if it has a reasonable basis in fact and law.” Pierce v. Underwood, 487 U.S. 3 552, 566 n.2 (1988). 4 Defendant does not contend that an award of fees in this case would be unjust. 5 Nor has she shown that the positions taken in defense of the ALJ’s erroneous decision 6 were substantially justified. 7 The Court found that the ALJ committed legal error by failing to identify legally 8 sufficient reasons for rejecting limitations assessed by Dr. Rossum, Plaintiff’s treating 9 cardiologist. Doc. 33 at 11. Defendant argues that her position was substantially 10 justified because “a court could have found that the ALJ’s evaluation of Dr. Rossum’s 11 opinion in this circumstance was appropriate.” Doc. 39 at 6. The opinion of a treating or 12 examining physician “can only be rejected for specific and legitimate reasons that are 13 supported by substantial evidence in the record.” Lester v. Chater, 81 F.3d 821, 830 (9th 14 Cir. 1995) (internal citation omitted). The Court found that the ALJ failed to address 15 concentration and attention limitations assessed by Dr. Rossum and that this error was not 16 harmless because the ALJ did not address these limitations at all. Doc. 33 at 11. Because 17 the ALJ failed to address limitations assessed by a treating physician, her decision did not 18 comport with the Ninth Circuit’s requirement for rejecting the opinion of a treating or 19 examining physician. Defendant’s position cannot be said to have a “reasonable basis in 20 law,” and was not substantially justified. 21 Plaintiff’s counsel, Mark Caldwell, has filed an affidavit (Doc. 38) and an 22 itemized statement of fees (Doc. 38-1) showing that he worked 39.00 hours on this case. 23 Having reviewed the affidavit and the statement of fees, and having considered the 24 relevant fee award factors, see Hensley v. Eckerhart, 461 U.S. 424, 429-30 & n.3 (1983), 25 the Court finds that the amount of the requested fee award is reasonable. Plaintiff’s 26 counsel also requests that the Court order any check to be sent to his office because 27 Plaintiff has assigned her right to EAJA fees to him. Doc. 37 at 9. The Court will not 28 grant this request, however, because, as Defendant correctly notes, this determination -2- 1 must be made by the Commissioner after confirming that Plaintiff does not owe a debt 2 that is subject to offset under the Treasury Offset Program. Doc. 39 at 7-8 (citing Astrue 3 v. Ratcliff, 560 U.S. 586, 594 (2010) (“EAJA fees are payable to litigants and are thus 4 subject to offset where a litigant has outstanding federal debts.”)). 5 IT IS ORDERED: 6 1. Plaintiff’s motion for attorney’s fees (Doc. 36) is granted. 7 2. Plaintiff is awarded $7,278.93 pursuant to 28 U.S.C. § 2412. 8 Dated this 29th day of August, 2014. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?