Kosies v. Astrue

Filing 27

ORDER granting 24 Motion for Attorney Fees in the amount of $4,141.28. Signed by Magistrate Judge Charles R Pyle on 5/1/15. (See attached PDF for complete information.) (KAH)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gregory Kosies,

No. CV 10-686-TUC-CRP
Plaintiff,

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v.

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ORDER

Carolyn Colvin, Acting Commissioner of
Social Security Administration,

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Defendant.

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This action commenced when Plaintiff Gregory Kosies sought judicial review of

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Defendant’s decision denying his applications for disability insurance benefits and

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supplemental security income. Upon consideration of the parties’ briefs on the issue, this

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Court entered an Order reversing the decision and remanding the matter for further

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proceedings. (Doc. 22). Plaintiff’s counsel now seeks attorneys’ fees in the amount of

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$4,141.28 under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. ' 2412(d) (Docs.

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24, 26). Although Defendant does not contest the amount of fees requested, Defendant

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argues that fees are not warranted because the government’s action in this case was

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substantially justified (Doc. 25). For the following reasons, the Court grants Plaintiff’s

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request for attorneys’ fees.

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DISCUSSION

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The EAJA “authorizes federal courts to award attorneys’ fees, court costs, and

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other expenses when a party prevails against the United States, although fee-shifting is

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not mandatory.” Hardisty v. Astrue, 592 F.3d 1072, 1076 (9th Cir. 2010). Plaintiff is a

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prevailing party because the decision denying his benefits has been remanded for further

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proceedings. See Akopyan v. Barnhart, 296 F.3d 852, 854-55 (9th Cir. 2002); Gutierrez v.

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Barnhart, 274 F.3d 1255, 1257 (9th Cir. 2001).

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Under the EAJA reasonable attorneys’ fees shall be awarded unless Defendant

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shows her position in this case was “substantially justified or that special circumstances

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make an award unjust.” 28 U.S.C. § 2412(d)(1)(A); see also Gutierrez, 274 F.3d at 1258.

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“Substantially justified” means “‘justified in substance or in the main’—that is, justified

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to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552,

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565, (1988); see also Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2005). “Put

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differently, the government’s position must have a ‘reasonable basis both in law and

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fact.’” Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013) (quoting Pierce, 487 U.S. at

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565). Further, the EAJA’s reference to the government’s position encompasses “both the

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government's litigation position and the underlying agency action giving rise to the civil

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action.” Meier, 727 F.3d at 870 (citations omitted). The government bears the burden of

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showing that its position was substantially justified. Gonzales v. Free Speech Coalition,

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408 F.3d 613, 618 (9th Cir. 2005).

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Defendant argues that an award of attorney’s fees should be denied because her

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position was substantially justified. (Response (Doc. 25)). In the context of a Social

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Security disability determination, “district courts should focus on whether the

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government’s position on the particular issue on which the claimant earned remand was

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substantially justified, not on whether the government’s ultimate disability determination

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was substantially justified.” Hardisty, 592 F.3d at 1078 (citing Flores v. Shalala, 49 F.3d

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562, 569 (9th Cir. 1995)). A position can be substantially justified pursuant to the EAJA

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even when the position is ultimately incorrect. Pierce, 487 U.S. at 566 n.2. The test for

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determining whether a position was substantially justified, therefore, focuses on whether

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“a reasonable person could think it correct[.]” Id. If “there is a genuine dispute” between

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reasonable minds then the position is “substantially justified” pursuant to the EAJA. Id. at

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565. However, the government’s defense of “basic and fundamental errors” cannot be

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considered as substantially justified. Shafer v. Astrue, 518 F.3d 1067, 1071-72 (9th Cir.

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2008) (holding that it was legal error to discredit claimant’s testimony without giving

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clear and convincing reasons, and that the Commissioner was not substantially justified

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in defending it).

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In this case, the Court found that Defendant’s final decision merited remand

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because: (1) examining Doctor Rothbaum’s opinion was in conflict with other significant

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evidence in the record and, thus, the Appeal Council’s finding that Dr. Rothbaum’s

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opinion was entitled to “great weight” because it was “consistent with the totality of the

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evidence” was erroneous (Order (Doc. 22), pp. 2-5); (2) the ALJ failed to meet his burden

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by providing specific and legitimate reasons for discounting treating Dr. Levi’s opinion

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(id. at pp. 6-7); (3) the ALJ failed to meet his burden by stating germane reasons to

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discount Nurse Practitioner Amanti’s opinion and, instead, improperly arbitrarily

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substituted his own medical assessment to support his rejection of same (id. at pp. 8-9);

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and (4) the ALJ was incorrect on all three points on which he based his decision to

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discount Plaintiff’s credibility (id. at pp. 9-11).

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underlying administrative decision and the decision to oppose Plaintiff’s request for

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judicial review “had a reasonable basis in the facts.” (Doc. 25, pp. 5-12).

The government contends that the

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While the Court acknowledged in its remand decision that the record contained

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conflicting evidence related to Plaintiff’s impairments and pain (Doc. 22, pp. 4-5, 7, 11),

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the law is clear that the ALJ is responsible for resolving conflicts in the medical

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testimony, determining credibility, and resolving ambiguities, see Andrews v. Shalala, 53

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F.3d 1035, 1039 (9th Cir. 1995), and the record was equally clear that the ALJ completely

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failed to fulfill this responsibility given his “fail[ure] to resolve any of the many conflicts

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in the medical evidence.” (Doc. 22, p. 7; see also id. at pp. 4-5, 7, 11). Moreover, the

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ALJ’s burden to state legally sufficient reasons to reject or discount testimony is also

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clear under the law. See e.g. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (setting out

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ALJ’s burden to reject physician testimony); Lewis v. Apfel, 236 F.3d 503, 311 (the ALJ

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must provide germane reasons for discounting a nurse practitioner’s opinion); Robbins v.

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Social Sec. Admin, 466 F.3d 880, 884 (9th Cir. 2006) (stating test for discounting a

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claimant’s credibility). Yet, the ALJ failed to satisfy his burden. The Ninth Circuit has

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found that an ALJ’s “[f]ailure to make findings and weigh evidence…” constitute

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“serious” errors. Shafer, 518 F.3d at 1072 (quoting Corbin v. Apfel, 149 F.3d 1051, 1053

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(9th Cir. 1998)).

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Here, the ALJ’s decision was unsupported by substantial evidence and based on

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legal error given his failure to state legally sufficient reasons to support the decision to

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deny benefits. Defense of such “basic and fundamental errors” lack substantial

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justification on this record. Id. When the government's underlying position is not

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substantially justified, the Court need not address whether the government's litigation

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position was justified. Meier, 727 F.3d at 872 (citing Shafer, 518 F.3d at 1071).

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Moreover, consideration of the government's position in this litigation, would inevitably

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result in the conclusion that the government’s defense of the ALJ’s errors is not

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substantially justified. See e.g., Sampson v. Chater, 103 F.3d 918, 922 (9th Cir.1996)

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(stating that “[i]t is difficult to imagine any circumstance in which the government's

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decision to defend its actions in court would be substantially justified, but the underlying

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administrative decision would not.”); Meier, 727 F.3d at 873 (same); Green v. Colvin,

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2013 WL 1878924 at *2 (D. Ariz. May 3, 2013) (“While it may be possible that some

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decision will be unsupported by substantial evidence or based on legal error and yet still

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have a reasonable basis in law and fact, this is not that case.”). This is especially so given

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that Defendant’s attempt to establish substantial justification essentially restates her

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arguments that the Court previously rejected in its order remanding this matter for further

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proceedings. See Meier, 727 F.3d at 873 (rejecting government’s attempt to establish

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substantial justification for its position by relying on arguments raised on previous

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unsuccessful appeal); Shreve v. Colvin, 2013 WL 4010993 at *3 (D. Ariz. Aug. 6, 2013)

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(rejecting government’s reliance on arguments made in opposing judicial review of the

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Commissioner’s decision to show substantial justification for its position). In light of the

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errors in the ALJ’s analysis, the Court cannot conclude that the government was

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substantially justified in defending the administrative decision in this case. Consequently,

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the Court will award Plaintiff attorneys’ fees under the EAJA.

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Defendant does not contest the amount of fees requested. However, Defendant

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points out that, although Plaintiff assigned his rights to such fees to his attorney, in light

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of Astrue v. Ratliff, 560 U.S. 586 (2010), EAJA fees awarded “belong to the Plaintiff and

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are subject to offset under the Treasury Offset Program (31 U.S.C. ' 3716(c)(3)(B)).”

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(Doc. 25, p. 12). Defendant proposes, and Plaintiff has not objected to, Defendant

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making fees payable directly to Plaintiff’s counsel if Defendant determines that Plaintiff

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does not owe a debt that is subject to offset under the Treasury Offset Program and agrees

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to waive the requirements of the Anti-Assignment Act. (Id. at pp. 12-13). However, if

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Plaintiff owes a debt under the Treasury Offset Program, then Defendant cannot agree to

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waive the requirements of the Anti-Assignment Act, and any remaining EAJA fees after

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offset will be paid by a check made payable to Plaintiff but delivered to Plaintiff’s

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attorney. (Id. at p. 13).

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CONCLUSION

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For the foregoing reasons, Plaintiff is to entitled attorneys’ fees in the uncontested
amount of $4,141.28. Accordingly,

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IT IS ORDERED that Plaintiff’s Motion for Award of Attorneys’ Fees Pursuant to

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the Equal Access to Justice Act, 28 U.S.C. ' 2412(d)), in the amount of $4,141.28 is

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GRANTED. Payment will be delivered to Plaintiff’s attorney at his office: John A.

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Gravina, Esq., 3546 N Euclid Ave., Tucson, AZ 85719-1743.

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IT IS FURTHER ORDERED that if, after receiving the Court’s EAJA fee order,

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the Commissioner: (1) determines upon effectuation of the Court’s EAJA fee order that

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Plaintiff does not owe a debt that is subject to offset under the Treasury Offset Program,

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and (2) agrees to waive the requirements of the Anti-Assignment Act (31 U.S.C. §

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3727(b)), the fees will be made payable to Plaintiff’s attorney. However, if there is a debt

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owed under the Treasury Offset Program, the remaining EAJA fees after offset will be

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paid by check made out to Plaintiff but delivered to Plaintiff’s attorney.

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Dated this 1st day of May, 2015.

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