Lasso v. Astrue

Filing 28

ORDER that Plaintiff's 25 Motion for Attorney Fees is granted. Plaintiff is awarded $6,931.63 in attorney's fees pursuant to Equal Access to Justice Act, 28 U.S.C. § 2412. Signed by Judge David G Campbell on 1/8/2014.(LFIG)

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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 Michael P Lasso, No. CV-12-02291-PHX-DGC Plaintiff, 10 11 v. 12 ORDER Michael J Astrue, 13 Defendant. 14 15 Plaintiff has filed a motion for attorney’s fees pursuant to the Equal Access to 16 Justice Act (“EAJA”), 28 U.S.C. § 2412. Doc. 25. Defendant has filed a response. 17 Doc. 26. Plaintiff has replied. Doc. 25. For the reasons stated below, the Court will 18 grant the motion. 19 I. Background. 20 An administrative law judge (“ALJ”) denied Plaintiff’s application for social 21 security benefits on July 22, 2011. Doc. 1 at 1. That decision became final when the 22 Appeals Council denied review on August 27, 2012. Id. at 2. Plaintiff brought an action 23 for judicial review in this Court pursuant to 42 U.S.C. § 405(g). Id. The Court ruled in 24 favor of Plaintiff and remanded the case for further proceedings. Doc. 21. Plaintiff has 25 now filed an application for attorney fees under the EAJA, requesting $6,931.63 in 26 attorney’s fees for 37.20 hours of work performed. Doc. 25 at 1. 27 II. 28 Legal Standard. 28 U.S.C. § 2412(d)(1)(A) provides that “a court shall award to a prevailing party 1 other than the United States fees and other expenses . . . unless the court finds that the 2 position of the United States was substantially justified or that special circumstances 3 made an award unjust.” “An applicant for disability benefits becomes a prevailing party 4 for purposes of the EAJA if the denial of her benefits is reversed and remanded 5 regardless of whether disability benefits ultimately are awarded.” Gutierrez v. Barnhart, 6 274 F.3d 1255, 1257 (9th Cir. 2001). In the Ninth Circuit, “attorneys’ fees are to be 7 awarded to a party winning a sentence-four remand unless the commissioner shows that 8 his position with respect to the issue on which the district court based its remand was 9 substantially justified.” Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002) (internal 10 citations and quotations omitted). The Supreme Court has stated that “a position can be 11 justified even though it is not correct, and we believe it can be substantially . . . justified 12 if a reasonable person could think it correct, that is, if it has a reasonable basis in law and 13 fact.” Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988). 14 III. Analysis. 15 The ALJ rejected Plaintiff’s claim because she found that Plaintiff could perform 16 some work, that he could work independently, and that he could adjust to other work than 17 that which he had previously been performing. Doc. 21 at 3. In making these findings, 18 the ALJ discredited the medical opinion of Dr. Eric Feldman, one of Plaintiff’s treating 19 physicians. On review, the Court found that the ALJ failed to articulate “a detailed and 20 thorough summary of the facts and conflicting clinical evidence” that supported her 21 decision to discredit Dr. Feldman’s opinion. Id. at 7. The Court remanded the case for 22 further proceedings consistent with its order. Id. at 17. 23 Defendant argues that Plaintiff should not be awarded attorney’s fees because her 24 position was substantially justified. Doc. 26 at 4-6. The Court disagrees. Defending 25 “basic and fundamental [procedural] errors” is not substantially justified. 26 Astrue, 518 F.3d 1067, 1071-72 (9th Cir. 2008) (holding that the ALJ committed 27 fundamental error by discrediting Claimant’s testimony without giving clear and 28 convincing reasons and that the Commissioner was not substantially justified in -2- Shafer v. 1 defending it); see also Jager v. Astrue, 290 F.App’x 27, 28 (9th Cir. 2008). “Where, as 2 here, the ALJ's decision was reversed on the basis of procedural errors, the question is not 3 whether [Defendant’s] position as to the merits of [Plaintiff’s] disability claim was 4 substantially justified. Rather, the relevant question is whether [Defendant’s] decision to 5 defend on appeal the procedural errors committed by the ALJ was substantially justified.” 6 Shafer, 518 F.3d at 1071-72 (emphasis original). A court should not need to speculate as 7 to the reasons the ALJ rejected the claimant’s allegations. Corbin v. Apfel, 149 F.3d 8 1051, 1052 (9th Cir. 1998) (holding that the Commissioner was not substantially justified 9 in defending an ALJ's decision where he rejected Claimant's testimony without specific 10 findings). 11 The ALJ in this case did not give legally sufficient reasons for rejecting Dr. 12 Feldman’s opinion, and offered only the conclusory statement that the opinion was not 13 supported by “the greater objective medical evidence of record.” The ALJ did not 14 indicate whether or how specific findings failed to support Feldman’s opinion. Just as 15 the Commissioner was not substantially justified in defending procedural errors in Shafer, 16 Defendant was not substantially justified in defending this case.1 17 Plaintiff’s counsel submitted an itemized statement showing 37.20 hours were 18 worked. Doc. 25-1 at 6-7. Having reviewed counsel’s statement and considered the fee 19 award factors, see Hensley v. Eckerhart, 461 U.S. 424, 429-30 (1983), the Court finds the 20 requested amount to be reasonable. 21 IT IS ORDERED: 22 1. Plaintiff’s application for attorney fees (Doc. 25) is granted. 23 24 25 26 27 28 1 Defendant argues that the Court was primarily concerned with “articulation standards,” and cites Seventh Circuit case law for the proposition that deficiencies in articulation alone generally do not warrant an award of attorney fees. This argument is not persuasive. Legal errors such as those committed by the ALJ here are procedural errors, and defense of such is not substantially justified under established Ninth Circuit precedent. -3- 1 2 3 2. Plaintiff is awarded $6,931.63 in attorney’s fees pursuant to Equal Access to Justice Act, 28 U.S.C. § 2412. Dated this 8th day of January, 2014. 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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