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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Marlene C. Beltowski, No. CV-13-08164-PCT-DGC Plaintiff, 10 11 v. 12 ORDER Carolyn W. Colvin, 13 Defendant. 14 15 Plaintiff brought this action for judicial review pursuant to 42 U.S.C. § 405(g) 16 after her application for disability benefits was denied. Doc. 1. The Court reversed 17 Defendant’s decision and remanded the case for further proceedings. Doc. 20. 18 Plaintiff has filed a motion for attorney’s fees pursuant to the Equal Access to 19 Justice Act, 28 U.S.C. § 2412 (“EAJA”). Doc. 22. The motion is adequately briefed and 20 no party has requested oral argument. For the reasons that follow, the Court will grant 21 the motion and award Plaintiff attorney’s fees in the amount of $4,787.71. 22 “The EAJA creates a presumption that fees will be awarded to prevailing parties.” 23 Flores v. Shalala, 49 F.3d 562, 567 (9th Cir. 1995). Plaintiff is a prevailing party 24 because this matter was remanded pursuant to sentence four of the Social Security Act, 25 42 U.S.C. § 405(g). 26 Gutierrez v. Barnhart, 274 F.3d 1255, 1257 (9th Cir. 2001). The Court should award 27 reasonable attorney’s fees under the EAJA unless Defendant shows that her position in 28 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); 1 28 U.S.C. § 2412(d)(1)(A); see Gutierrez, 274 F.3d at 1258. A position is substantially 2 justified “if it has a reasonable basis in fact and law.” Pierce v. Underwood, 487 U.S. 3 552, 566 n.2 (1988). 4 Defendant does not contend that an award of fees in this case would be unjust. 5 Nor has she shown that the positions taken in defense of the ALJ’s erroneous decision 6 were substantially justified. The Court found that the ALJ committed legal error by 7 failing to provide “specific and legitimate reasons” supported by substantial evidence for 8 rejecting the opinion of Dr. Gross, Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), and 9 by failing to comply with an Appeals Council directive that the ALJ consult with a 10 vocational expert at step four. Doc. 20 at 6, 8. Because the ALJ’s decision did not 11 comport with either the Ninth Circuit’s requirement for weighing medical source 12 opinions or the Appeals Council’s directive, Defendant’s position cannot be said to have 13 a “reasonable basis in law” and was not substantially justified. 14 Plaintiff’s counsel, Tye S. Smith, has filed an affidavit (Doc. 22-1) and an 15 itemized statement of fees (Doc. 30-1) showing that he worked 25.6 hours on this case. 16 Having reviewed the affidavit and the statement of fees, and having considered the 17 relevant fee award factors, see Hensley v. Eckerhart, 461 U.S. 424, 429-30 & n.3 (1983), 18 the Court finds that the amount of the requested fee award is reasonable. 19 IT IS ORDERED: 20 1. Plaintiff’s motion for attorney’s fees (Doc. 22) is granted. 21 2. Plaintiff is awarded $4,787.71 pursuant to 28 U.S.C. § 2412. 22 Dated this 1st day of August, 2014. 23 24 25 26 27 28 -2-

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