Lemberg v. Astrue

Filing 31

ORDER granting 26 Motion for Attorney Fees. Signed by Judge David G Campbell on 12/10/2013.(DGC, nvo)

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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 Kenneth W Lemberg, Plaintiff, 10 11 ORDER v. 12 No. CV-12-01704-PHX-DGC Michael J Astrue, et al., 13 Defendants. 14 15 Pending before the Court is Plaintiff’s motion for attorneys’ fees under the Equal 16 Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). Doc. 26. The motion is fully 17 briefed and no party has requested oral argument. The Court will grant the motion and 18 award Plaintiff attorneys’ fees in the amount of $7,024.45. 19 I. Relevant Facts and Legal Standard. 20 On August 20, 2013, the Court issued an order reversing Defendant’s denial of 21 benefits. Doc. 22. The Court remanded the case to Defendant for further proceedings 22 because the Administrative Law Judge erred in giving reduced weight to Dr. Porter’s 23 treatment notes and by not providing legally sufficient reasons for discounting the 24 testimony of Mrs. Lemberg concerning the intensity of Plaintiff’s limitations. Id. 25 Under the EAJA, the Court shall award attorneys’ fees to a prevailing party unless 26 the United States shows that its position was “substantially justified or that special 27 circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A); Gutierrez v. Barnhart, 28 274 F.3d 1255, 1258 (9th Cir. 2001). “An applicant for disability benefits becomes a 1 prevailing party for purposes of the EAJA if the denial of her benefits is reversed and 2 remanded[.]” Gutierrez, 274 F.3d at 1257. The EAJA “creates a presumption that fees 3 will be awarded to prevailing parties.” Flores v. Shalala, 49 F.3d 562, 567 (9th Cir. 4 1995). The “burden is on the Secretary” to overcome that presumption by showing that 5 its “position was substantially justified.” Yang v. Shalala, 22 F.3d 213, 217 (9th Cir. 6 1994). “Substantially justified” means “justified in substance or in the main,” or in other 7 8 words, “justified to a degree that could satisfy a reasonable person.” 9 Underwood, 487 U.S. 552, 565 (1988). A substantially justified position must have a 10 reasonable basis both in law and fact. Id. The fact that the government did not prevail in 11 court “does not raise a presumption that its position was not substantially justified.” Kali 12 v. Bowen, 854 F.2d 329, 334 (9th Cir. 1988). 13 substantially justified if a “reasonable person could think it correct, that is, if it has a 14 reasonable basis in law and fact” or there if there is a “genuine dispute.” Underwood, 15 487 U.S. at 565, 566 n.2. 16 II. 17 18 Pierce v. Instead, the defendant’s position is Analysis. Defendant does not contend that an award of fees in this case would be unjust. Defendant does contend that its position was substantially justified. Doc. 27 at 1. 19 The Court noted in its order that Dr. Porter’s medical opinion was based on 20 physical exams and MRIs that led him to opine that the objective medical evidence was 21 consistent with Plaintiff’s complaints. Doc. 22 at 12. The Court also noted that the ALJ 22 failed entirely to address or discount Dr. Porter’s January 2005 medical opinion that 23 objective medical evidence confirmed Plaintiff’s subjective complaints. Id. The Court 24 concluded that when a doctor’s opinion is supported by his own observations, an ALJ 25 does not provide clear and convincing reasons for rejecting the doctor’s opinion by 26 questioning the credibility of the patient’s complaints. Id. Because there is no genuine 27 dispute as to whether the ALJ erred in discounting Dr. Porter’s opinion, the Court finds 28 that Defendant’s position lacked substantial justification. -2- 1 The Court also found that the ALJ failed to provide germane reasons for 2 discounting the testimony of Mrs. Lemberg. Id. at 18; Dodrill v. Shalala, 12 F.3d 915, 3 919 (9th Cir. 1993) (“If the ALJ wishes to discount the testimony of [a] lay witness[], he 4 must give reasons that are germane to each witness.”). The ALJ erroneously discounted 5 Mrs. Lemberg’s testimony because of concern that she would likely be biased by her 6 close relationship to Plaintiff. Tr. 596. Defendant argues that the ALJ’s decision to 7 discount Mrs. Lemberg’s testimony was reasonable because her statements were not 8 consistent with the objective medical evidence. Doc. 27 at 5; see Bayliss v. Barnhart, 9 427 F.3d 1211, 1218 (9th Cir. 2005) (finding that inconsistency with the medical record 10 is a germane reason for discrediting lay witness testimony). The Court found, however, 11 that the ALJ’s decision to discount Mrs. Lemberg’s testimony was legal error for two 12 reasons. First, a lack of full corroboration with the objective medical evidence is not a 13 sufficient reason to discount her observations of Plaintiff’s physical limitations. Second, 14 the ALJ did not identify any specific objective evidence that was inconsistent with her 15 stated limitations. The Court concludes that Defendant did not have a reasonable basis in 16 law or fact to defend the ALJ’s decision and therefor lacked substantial justification for 17 its position. Plaintiff is entitled to an award of attorney’s fees. 18 Plaintiff’s counsel has filed an affidavit and an itemized statement of fees showing 19 that he worked 37.7 hours on this case, with legal fees totaling $7,024.45. Doc. 26 20 Exs. A-C.1 Defendant does not contend that the time Mr. Slepian spent researching and 21 drafting in this matter was excessive or should be reduced. Having reviewed the affidavit 22 and the statement of fees, and having considered the relevant fee award factors, see 23 Hensley v. Eckerhart, 461 U.S. 424, 429-30 & n.3 (1983), the Court finds that the amount 24 of the requested fee award is reasonable. 25 IT IS ORDERED: 26 1. Plaintiff’s motion for attorneys’ fees (Doc. 26) is granted. 27 1 28 In his reply, Plaintiff asserts that he is entitled to an additional $522.34 for the 2.8 hours expended in drafting his reply. Doc. 28 at 10. No additional affidavit or documentation was submitted. Accordingly, the Court will not consider this request. -3- 1 2. Plaintiff is awarded $7,024.45 in attorneys’ fees. 2 Dated this 10th day of December, 2013. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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