Beltowski v. Colvin

Filing 24

ORDER that Plaintiff's 22 Motion for Attorney Fees is granted. Plaintiff is awarded $4,787.71 pursuant to 28 U.S.C. § 2412. Signed by Judge David G Campbell on 8/1/2014.(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Marlene C. Beltowski,

No. CV-13-08164-PCT-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. 20.

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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. 22. The motion is adequately briefed and

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no party has requested oral argument. For the reasons that follow, the Court will grant

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the motion and award Plaintiff attorney’s fees in the amount of $4,787.71.

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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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failing to provide “specific and legitimate reasons” supported by substantial evidence for

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rejecting the opinion of Dr. Gross, Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), and

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by failing to comply with an Appeals Council directive that the ALJ consult with a

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vocational expert at step four. Doc. 20 at 6, 8. Because the ALJ’s decision did not

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comport with either the Ninth Circuit’s requirement for weighing medical source

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opinions or the Appeals Council’s directive, Defendant’s position cannot be said to have

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

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Plaintiff’s counsel, Tye S. Smith, has filed an affidavit (Doc. 22-1) and an

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itemized statement of fees (Doc. 30-1) showing that he worked 25.6 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.

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IT IS ORDERED:

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Plaintiff’s motion for attorney’s fees (Doc. 22) is granted.

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Plaintiff is awarded $4,787.71 pursuant to 28 U.S.C. § 2412.

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Dated this 1st day of August, 2014.

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