Pineda v. Colvin

Filing 34

ORDER granting 28 Plaintiff's Motion for Attorney Fees, Plaintiff is awarded $7,282.69 pursuant to 28 U.S.C. § 2412. Signed by Judge David G Campbell on 8/1/14.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Lezley Marisol Pineda,

No. CV-13-01128-PHX-DGC

Plaintiff,

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v.

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ORDER

Carolyn W. Colvin,

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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 her 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. 26.

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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. 28. The motion is fully briefed and no

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party has requested oral argument. For the reasons that follow, the Court will grant the

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motion and award Plaintiff attorney’s fees in the amount of $7,282.69.

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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 her position in

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

Doc. 26; 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. A position is substantially

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

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552, 566 n.2 (1988).

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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. The Court found that the ALJ committed legal error by

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relying solely on the medical-vocational guidelines, or “grids,” when a vocational

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consultant should have been consulted. Doc. 26 at 8. “The Commissioner’s need for

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efficiency justifies use of the grids at step five where they completely and accurately

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represent a claimant’s limitation.” Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999)

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(emphasis in original). Tackett noted that “significant non-exertional impairments . . .

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may make reliance on the [guidelines] inappropriate,” and that “pain can be a non-

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exertional limitation.” Id. at 1101-02. The Court found that the ALJ failed to address Dr.

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Varns’ report, which indicated that Plaintiff experiences pain that is “moderately severe,”

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that her pain would “frequently” interfere with attention and concentration, and that she

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would “frequently” experience deficiencies of concentration. The Court concluded that

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Dr. Varns’ report might have affected the ALJ’s conclusion that Plaintiff’s “additional

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limitations have little or no effect on the occupational base of unskilled work.” Doc. 26

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at 7. Because Plaintiff’s non-exertional limitations could have impacted Plaintiff’s ability

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to complete “basic mental work-related activities,” and because the ALJ did not explain

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whether or why he disregarded this portion of Dr. Varns’ report, the Court concluded that

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it was not appropriate for the ALJ to rely solely on the grids and that a vocational expert

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should have been consulted. Id. at 7-8. Because the ALJ’s decision did not comport with

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the Ninth Circuit’s requirement for using the grids, Defendant’s position cannot be said to

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have a “reasonable basis in law” and was not substantially justified.

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Plaintiff’s counsel, Mark Caldwell, has filed an affidavit (Doc. 30) and an

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itemized statement of fees (Doc. 30-1) showing that he worked 36.7 hours on this case.

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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. Pursuant to

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their request, the Court will also award Plaintiff fees for the time required to prepare a

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reply to the Commissioner’s objection to the EAJA fee motion. Doc. 32 at 4.

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IT IS ORDERED:

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Plaintiff’s motion for attorney’s fees (Doc. 28) is granted.

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Plaintiff is awarded $7,282.69 pursuant to 28 U.S.C. § 2412.

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Dated this 1st day of August, 2014.

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