Rose v. Commissioner of Social Security Administration

Filing 25

ORDER granting 23 Plaintiff's Application for Award of Attorneys' Fees and Costs Under the Equal Access to Justice Act. Plaintiff is awarded attorneys' fees totaling $7013.55 and costs of $420.25 pursuant to the Equal Acc ess to Justice Act. This award shall be made payable directly to Plaintiff and sent to his counsel, and is subject to offset to satisfy any pre-existing debt that Plaintiff owes the United States. Signed by Magistrate Judge Michelle H Burns on 7/6/17.(EJA)

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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 10 11 12 13 14 ) ) ) Plaintiff, ) ) vs. ) Carolyn W. Colvin, Commissioner of the ) ) Social Security Administration, ) ) Defendant. ) Nicholas Rose, CIV 16-0298-PHX-MHB ORDER 15 Pending before the Court is Plaintiff Nicholas Rose’s Application for Award of 16 Attorneys’ Fees and Costs Under the Equal Access to Justice Act (“EAJA”) (Doc. 23). After 17 reviewing the administrative record and the arguments of the parties, the Court now issues 18 the following ruling. 19 BACKGROUND 20 On November 6, 2013, Plaintiff filed an application for disability insurance benefits 21 alleging disability beginning August 1, 2013. His applications were denied initially and on 22 reconsideration. Thereafter, Plaintiff requested a hearing before an administrative law judge. 23 A hearing was held on July 8, 2015, and the ALJ issued a decision finding that Plaintiff was 24 not disabled. The Appeals Council denied Plaintiff’s request for review, making the ALJ’s 25 decision the final decision of the Commissioner. Plaintiff then sought judicial review of the 26 ALJ’s decision pursuant to 42 U.S.C. § 405(g). 27 In his brief, Plaintiff contended that the ALJ erred by: (1) failing to properly weigh 28 medical source opinion evidence; (2) failing to provide valid reasons for discounting the 1 opinions from the Department of Veteran Affairs (“VA”); and (3) failing to make a proper 2 finding at step five of the sequential evaluation process. 3 This Court, after reviewing the administrative record and the arguments of the parties, 4 vacated the Commissioner’s decision and remanded the matter for further administrative 5 proceedings consistent with its Order. Although the Court found that the ALJ properly 6 weighed the medical source opinion evidence related to Plaintiff’s alleged impairments, and 7 gave specific and legitimate reasons, based on substantial evidence in the record to support 8 her findings, the ALJ erred by failing to articulate any persuasive, specific, and valid reasons 9 for rejecting the VA’s disability rating. See McCartey v. Massanari, 298 F.3d 1072, 1076 (9th 10 Cir. 2002). 11 According to the record, Plaintiff received a 100% disability rating from the VA with 12 “total occupational and social impairment.” The evaluation discussed major depressive 13 disorder and generalized anxiety disorder documenting “feeling sad, isolating, lack for 14 motivation, irritability, guilt, trouble sleeping.” The anxiety was described as “significant 15 worry, variety of triggers, sweaty hands, increased heart rate, mind goes blank.” The VA 16 agreed that “both occupational and social impairment are caused by both anxiety and 17 depression” and established that the Global Assessment of Functioning is between 45 to 50. 18 The ALJ gave “no weight” to the VA’s 100% disability rating stating that the 19 disability award documented in these letters is not supported by any explanation of the 20 evidence. The VA, however, cited to a previous mental disorder disability benefits 21 questionnaire and the service treatment record. Further, the VA file as a whole was full of 22 mental health treatment for anxiety and depression. 23 Furthermore, although the ALJ purported to have read and considered the VA’s 24 disability determination, the ALJ dismissed Plaintiff’s “total occupational and social 25 impairment” caused by anxiety and depression – by simply stating that “depression and 26 anxiety interfere with the claimant’s occupational and educational goals.” Finally, the ALJ 27 stated for “reasons previously discussed,” she gives “little weight” to an unknown evaluator. 28 -2- 1 The ALJ completely failed to specify which “reasons previously discussed” applied to the 2 VA’s 100% disability rating. 3 The Court additionally found that the error was not harmless because the ALJ’s 4 rejection of the VA disability rating was not “inconsequential to the ultimate nondisability 5 determination.” Molina v. Astrue, 674 F.3d 1104, 1121-22 (9th Cir. 2012). 6 A prevailing party in an action against the United States is entitled to an award of 7 attorney fees and costs under the EAJA, 28 U.S.C. § 2412(d)(1)(A), unless the government’s 8 position was “substantially justified.” The government’s position is substantially justified “if 9 a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact.” 10 Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988). 11 Plaintiff is the prevailing party. Therefore, the issue before the Court is whether 12 Defendant’s position in opposing Plaintiff’s appeal was “substantially justified.” Shafer v. 13 Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008). 14 Under the EAJA, “substantial justification” means that “‘the government’s position 15 must have a reasonable basis in law and fact.’” Shafer, 518 F.3d at 1071 (quoting Corbin v. 16 Apfel, 149 F.3d 1051, 1052 (9th Cir. 1998)). “Where ... the ALJ’s decision was reversed on 17 the basis of procedural errors, the question is not whether [Defendant’s] position as to the 18 merits of [Plaintiff’s] disability claim was substantially justified. Rather, the relevant 19 question is whether [Defendant’s] decision to defend on appeal the procedural errors 20 committed by the ALJ was substantially justified.” Id. (emphasis in original) (citations 21 omitted). 22 The Court concludes that Defendant’s decision to defend the ALJ’s procedural errors 23 was not substantially justified. See Shafer, 518 F.3d at 1072. As illustrated above, the ALJ 24 failed articulate any persuasive, specific, and valid reasons for rejecting the VA’s disability 25 rating. See McCartey, 298 F.3d at 1076. 26 Defendant does not contest the amount of fees requested, including the cost of living 27 increase requested by Plaintiff or to the number of hours that Plaintiff’s counsel spent on this 28 case. Plaintiff’s counsel has prepared and attached an itemized statement representing the -3- 1 time expended by counsel before this Court, including preparation of the Application for 2 Award of Attorneys’ Fees Under the Equal Access to Justice Act, supporting memoranda, 3 and other necessary documentation, showing a total of 33.8 hours by counsel for work 4 associated with this case. Plaintiff also demonstrates that the costs associated with this case 5 are $420.25. Having reviewed the affidavit and the itemized statement of fees, and having 6 considered the relevant fee award factors, see Hensley v. Eckerhart, 461 U.S. 424, 429-30 7 & n.3 (1983), the Court finds that the amount of the requested fee award is reasonable. 8 Accordingly, 9 IT IS ORDERED that Plaintiff’s Application for Award of Attorneys’ Fees and Costs 10 11 12 Under the Equal Access to Justice Act (Doc. 23) is GRANTED; IT IS FURTHER ORDERED that Plaintiff is awarded attorneys’ fees totaling $7013.55 and costs of $420.25 pursuant to the Equal Access to Justice Act; 13 IT IS FURTHER ORDERED that this award shall be made payable directly to 14 Plaintiff and sent to his counsel, and is subject to offset to satisfy any pre-existing debt that 15 Plaintiff owes the United States. 16 DATED this 6th day of July, 2017. 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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