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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Julie Ann Chavez,

No. CV-12-01124-PHX-DGC
Plaintiff,

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v.

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ORDER

Carolyn W. Colvin,

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Defendants.

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Plaintiff brought this action for judicial review pursuant to 42 U.S.C. § 405(g)

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after her application for disability benefits was denied. Doc. 1. The Court reversed

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Defendant’s decision and remanded the case for further proceedings. Doc. 33.

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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, 28 U.S.C. § 2412 (“EAJA”). Doc. 36. The motion is fully briefed and no

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party has requested oral argument. For reasons that follow, the Court will grant the

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motion and award Plaintiff attorney’s fees in the amount of $7,278.93.

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“The EAJA creates a presumption that fees will be awarded to prevailing parties.”

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Flores v. Shalala, 49 F.3d 562, 567 (9th Cir. 1995). Plaintiff is a prevailing party

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because this matter was remanded pursuant to sentence four of the Social Security Act,

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42 U.S.C. § 405(g).

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Gutierrez v. Barnhart, 274 F.3d 1255, 1257 (9th Cir. 2001). The Court should award

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reasonable attorney’s fees under the EAJA unless Defendant shows that her position in

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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);

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28 U.S.C. § 2412(d)(1)(A); see Gutierrez, 274 F.3d at 1258. A position is substantially

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justified “if it has a reasonable basis in fact and law.” Pierce v. Underwood, 487 U.S.

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552, 566 n.2 (1988).

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Defendant does not contend that an award of fees in this case would be unjust.

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Nor has she shown that the positions taken in defense of the ALJ’s erroneous decision

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were substantially justified.

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The Court found that the ALJ committed legal error by failing to identify legally

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sufficient reasons for rejecting limitations assessed by Dr. Rossum, Plaintiff’s treating

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cardiologist.

Doc. 33 at 11.

Defendant argues that her position was substantially

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justified because “a court could have found that the ALJ’s evaluation of Dr. Rossum’s

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opinion in this circumstance was appropriate.” Doc. 39 at 6. The opinion of a treating or

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examining physician “can only be rejected for specific and legitimate reasons that are

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supported by substantial evidence in the record.” Lester v. Chater, 81 F.3d 821, 830 (9th

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Cir. 1995) (internal citation omitted). The Court found that the ALJ failed to address

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concentration and attention limitations assessed by Dr. Rossum and that this error was not

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harmless because the ALJ did not address these limitations at all. Doc. 33 at 11. Because

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the ALJ failed to address limitations assessed by a treating physician, her decision did not

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comport with the Ninth Circuit’s requirement for rejecting the opinion of a treating or

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examining physician. Defendant’s position cannot be said to have a “reasonable basis in

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law,” and was not substantially justified.

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Plaintiff’s counsel, Mark Caldwell, has filed an affidavit (Doc. 38) and an

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itemized statement of fees (Doc. 38-1) showing that he worked 39.00 hours on this case.

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Having reviewed the affidavit and the statement of fees, and having considered the

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relevant fee award factors, see Hensley v. Eckerhart, 461 U.S. 424, 429-30 & n.3 (1983),

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the Court finds that the amount of the requested fee award is reasonable. Plaintiff’s

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counsel also requests that the Court order any check to be sent to his office because

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Plaintiff has assigned her right to EAJA fees to him. Doc. 37 at 9. The Court will not

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grant this request, however, because, as Defendant correctly notes, this determination

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must be made by the Commissioner after confirming that Plaintiff does not owe a debt

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that is subject to offset under the Treasury Offset Program. Doc. 39 at 7-8 (citing Astrue

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v. Ratcliff, 560 U.S. 586, 594 (2010) (“EAJA fees are payable to litigants and are thus

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subject to offset where a litigant has outstanding federal debts.”)).

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IT IS ORDERED:

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Plaintiff’s motion for attorney’s fees (Doc. 36) is granted.

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Plaintiff is awarded $7,278.93 pursuant to 28 U.S.C. § 2412.

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Dated this 29th day of August, 2014.

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