Halstead v. Astrue

Filing 32

ORDER granting 29 Motion for Attorney Fees. Plaintiff is awarded $7,041.77 pursuant to the Equal Access to Justice Act. Signed by Judge David G Campbell on 10/21/2013.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Brian Halstead,
Plaintiff,

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No. CV12-01706-PHX-DGC
ORDER

v.
Carolyn W. Colvin, Acting Commissioner
of Social Security,
Defendant.

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

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after his 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. 24.

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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. 29. The motion is fully briefed and no

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party has requested oral argument. For reasons stated below, the Court will grant the

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motion and award Plaintiff attorney’s fees in the amount of $7,041.77.

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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 his position in

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this case was “substantially justified or that special circumstances make an award unjust.”

Doc. 24; 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.

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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. Defendant argues that her position was reasonable and is

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therefore substantially justified. Doc. 30 at 4; see also Pierce v. Underwood, 487 U.S.

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552, 565 (1988) (holding that substantially justified means “justified to a degree that

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could satisfy a reasonable person”). The Supreme Court has held that a position can be

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

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566 n.2.

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Here, the ALJ did not explain why he rejected a treating physician’s opinion that

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Plaintiff had limitations in his ability to complete a normal workday. This constituted

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legal error. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Defendant’s

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arguments to the contrary amounted to post hoc rationalization, something not permitted

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in Social Security appeals. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225

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(9th Cir. 2009). Accordingly, the Commissioner’s position cannot be said to have a

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“reasonable basis in law” and is therefore not substantially justified.

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Plaintiff’s counsel, Eric Slepian, has filed an affidavit (Doc. 29-1 at 9-10) and an

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itemized statement of fees (Id. at 6-7) showing that he worked 37.8 hours on this case.1

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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.

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IT IS ORDERED:

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Plaintiff’s motion for attorney’s fees (Doc. 29) is granted.

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In his reply, Plaintiff’s attorney requests $93.27 for his time spent drafting the
reply brief. Doc. 31 at 5. No additional affidavit or documentation was submitted.
Accordingly, the Court will not consider this request.
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Plaintiff is awarded $7,041.77 pursuant to the Equal Access to Justice Act,

28 U.S.C. § 2412.
Dated this 21st day of October, 2013.

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