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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael P Lasso,

No. CV-12-02291-PHX-DGC
Plaintiff,

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v.

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ORDER

Michael J Astrue,

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Defendant.

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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 (“EAJA”), 28 U.S.C. § 2412. Doc. 25. Defendant has filed a response.

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Doc. 26. Plaintiff has replied. Doc. 25. For the reasons stated below, the Court will

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grant the motion.

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I.

Background.

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An administrative law judge (“ALJ”) denied Plaintiff’s application for social

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security benefits on July 22, 2011. Doc. 1 at 1. That decision became final when the

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Appeals Council denied review on August 27, 2012. Id. at 2. Plaintiff brought an action

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for judicial review in this Court pursuant to 42 U.S.C. § 405(g). Id. The Court ruled in

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favor of Plaintiff and remanded the case for further proceedings. Doc. 21. Plaintiff has

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now filed an application for attorney fees under the EAJA, requesting $6,931.63 in

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attorney’s fees for 37.20 hours of work performed. Doc. 25 at 1.

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II.

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Legal Standard.
28 U.S.C. § 2412(d)(1)(A) provides that “a court shall award to a prevailing party

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other than the United States fees and other expenses . . . unless the court finds that the

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position of the United States was substantially justified or that special circumstances

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made an award unjust.” “An applicant for disability benefits becomes a prevailing party

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for purposes of the EAJA if the denial of her benefits is reversed and remanded

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regardless of whether disability benefits ultimately are awarded.” Gutierrez v. Barnhart,

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274 F.3d 1255, 1257 (9th Cir. 2001). In the Ninth Circuit, “attorneys’ fees are to be

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awarded to a party winning a sentence-four remand unless the commissioner shows that

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his position with respect to the issue on which the district court based its remand was

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substantially justified.” Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002) (internal

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citations and quotations omitted). The Supreme Court has stated that “a position can be

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justified even though it is not correct, and we believe it can be substantially . . . justified

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if a reasonable person could think it correct, that is, if it has a reasonable basis in law and

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fact.” Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988).

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III.

Analysis.

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The ALJ rejected Plaintiff’s claim because she found that Plaintiff could perform

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some work, that he could work independently, and that he could adjust to other work than

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that which he had previously been performing. Doc. 21 at 3. In making these findings,

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the ALJ discredited the medical opinion of Dr. Eric Feldman, one of Plaintiff’s treating

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physicians. On review, the Court found that the ALJ failed to articulate “a detailed and

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thorough summary of the facts and conflicting clinical evidence” that supported her

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decision to discredit Dr. Feldman’s opinion. Id. at 7. The Court remanded the case for

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further proceedings consistent with its order. Id. at 17.

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Defendant argues that Plaintiff should not be awarded attorney’s fees because her

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position was substantially justified. Doc. 26 at 4-6. The Court disagrees. Defending

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“basic and fundamental [procedural] errors” is not substantially justified.

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Astrue, 518 F.3d 1067, 1071-72 (9th Cir. 2008) (holding that the ALJ committed

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fundamental error by discrediting Claimant’s testimony without giving clear and

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convincing reasons and that the Commissioner was not substantially justified in

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Shafer v.

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defending it); see also Jager v. Astrue, 290 F.App’x 27, 28 (9th Cir. 2008). “Where, as

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here, the ALJ's decision was reversed on the basis of procedural errors, the question is not

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whether [Defendant’s] position as to the merits of [Plaintiff’s] disability claim was

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substantially justified. Rather, the relevant question is whether [Defendant’s] decision to

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defend on appeal the procedural errors committed by the ALJ was substantially justified.”

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Shafer, 518 F.3d at 1071-72 (emphasis original). A court should not need to speculate as

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to the reasons the ALJ rejected the claimant’s allegations. Corbin v. Apfel, 149 F.3d

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1051, 1052 (9th Cir. 1998) (holding that the Commissioner was not substantially justified

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in defending an ALJ's decision where he rejected Claimant's testimony without specific

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findings).

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The ALJ in this case did not give legally sufficient reasons for rejecting Dr.

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Feldman’s opinion, and offered only the conclusory statement that the opinion was not

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supported by “the greater objective medical evidence of record.” The ALJ did not

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indicate whether or how specific findings failed to support Feldman’s opinion. Just as

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the Commissioner was not substantially justified in defending procedural errors in Shafer,

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Defendant was not substantially justified in defending this case.1

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Plaintiff’s counsel submitted an itemized statement showing 37.20 hours were

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worked. Doc. 25-1 at 6-7. Having reviewed counsel’s statement and considered the fee

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award factors, see Hensley v. Eckerhart, 461 U.S. 424, 429-30 (1983), the Court finds the

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requested amount to be reasonable.

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IT IS ORDERED:

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1.

Plaintiff’s application for attorney fees (Doc. 25) is granted.

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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.
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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.

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