Mitchell v. Astrue

Filing 28

ORDER granting in part and denying in part 25 Plaintiff's Motion for Attorney Fees. Plaintiff is awarded $4,741.12 in attorney's fees, which are payable to Plaintiff personally. (See attached Order for details). Signed by Senior Judge James A Teilborg on 5/19/2014.(TLB)

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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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vs.
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Carolyn Colvin, Acting Commissioner of)
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Social Security,
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Defendant.
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Arlene Mitchell,

No. CV 12-2195-PHX-JAT
ORDER

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Plaintiff appealed the Commissioner’s denial of her application for social security

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disability benefits to this Court. On appeal, the Commissioner conceded error and moved

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to remand this case to the agency for further proceedings. Docs. 20, 21. Plaintiff opposed

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the motion on the grounds that she sought remand for an immediate award of benefits. Doc.

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22. This Court granted Defendant’s motion and remanded for further proceedings. Doc. 23.

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Thereafter Plaintiff moved for attorney’s fees under the Equal Access to Justice Act.

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Doc. 25. Defendant does not oppose the request for fees, but argues that Plaintiff is not

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entitled to fees expended in opposing Defendant’s motion to remand. Doc. 26. Plaintiff

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replies and argues that she is entitle to fees for pursuing that remedy and seeks additional fees

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for having to reply to the motion for attorney’s fees. Doc. 27.

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The Court will grant to the motion for attorney’s fees to the extent it is unopposed.

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Specifically, Defendant does not oppose that Plaintiff is entitled to $4,741.12 in fees. Doc.

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26 at 4. Further, the Court agrees that such fees are payable to Plaintiff, not her counsel. See

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id at n.2; Doc . 27 at 7.

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Thus, all that is at issue is whether Plaintiff is entitled to fees for the 9.6 hours

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expending in opposing Defendant’s motion to remand and the 2 hours expended in filing a

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reply to Defendant’s response to Plaintiff’s motion for attorney’s fees. The parties appear

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to agree that this Court should award fees only for time “reasonably” expended on the case.

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Doc. 27 at 3; Doc. 26 at 2-3. Accordingly, the issue is whether it was reasonable for Plaintiff

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to oppose the motion to remand on the basis that she believed the Court should remand for

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an immediate award of benefits (and whether her seeking attorney’s fees for pursuing her

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attorney’s fees on this issue is also reasonable).

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Here, the Court agrees with Defendant that the fees expended in opposing remand

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were not reasonably expended. While it is true the agency relied on a doctor who, under the

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regulations, the agency was not allowed to rely on, this Court did not find that the ALJ’s

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opinion itself contained any errors. Doc. 23. Accordingly, Plaintiff should have reasonably

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anticipated that further development of the record would be the result. Further, the Court

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cannot find that the agency’s position in relying on that doctor was “not substantially

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justified” when the agency, on appeal, withdrew such reliance. Therefore, the Court will

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reduce Plaintiff’s request for fees as suggested by Defendant.

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Based on the foregoing,

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IT IS ORDERED that Plaintiff’s motion for attorney’s fees (Doc. 25) is granted in

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part and denied in part. Plaintiff is awarded $4,741.12 in attorney’s fees, which are payable

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to Plaintiff personally.

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DATED this 19th day of May, 2014.

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