Kendrick v. Astrue

Filing 24

ORDER GRANTING 22 Plaintiffs Petition for Attorneys Fees Under the Equal Access to Justice Act, in the amount of $4,063.28 in attorneys fees. IT IS FURTHER ORDERED that, Plaintiff is awarded $350 in costs, to be paid out of the Judgment F und, as administered by the Department of Justice. Clerk is DIRECTED to amend the judgment accordingly. Clerk is further DIRECTED to amend the docket to reflect that Carolyn W. Colvin, Acting Commissioner of the Social Security Administration, has been substituted as the named Defendant in this action. Signed by Magistrate Judge Hector C Estrada on 5/13/13.(BAC)

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1 WO 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 Kathleen Kendrick, 11 12 13 14 15 16 ) ) Plaintiff, ) ) vs. ) ) ) Carolyn W. Colvin, Acting Commissioner) of the Social Security Administration, ) ) Defendant. ) ) ) No. CV 11-296-TUC-HCE ORDER 17 18 Pending before the Court is Plaintiff’s Petition for Attorney’s Fees Under the Equal 19 Access to Justice Act (Doc. 22). Defendant has filed a Response (Doc. 23) in opposition to 20 Plaintiff’s Petition (Doc. 23). The Magistrate Judge has jurisdiction over this matter pursuant 21 to the parties’ consent. See 28 U.S.C. §636(c). The Court takes judicial notice that Michael 22 J. Astrue is no longer Commissioner of the Social Security Administration (hereinafter 23 “SSA”). Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court 24 substitutes the Acting Commissioner of the SSA, Carolyn W. Colvin, as the named 25 Defendant in this action. For the following reasons, the Court grants Plaintiff’s Petition. 26 I. FACTUAL & PROCEDURAL BACKGROUND 27 Upon consideration of Plaintiff’s action, filed pursuant to 42 U.S.C. §405(g), 28 requesting judicial review of the final decision of the Commissioner denying her claim for 1 disability insurance benefits, this Court remanded the matter for further administrative 2 proceedings. (See Doc. 20). Plaintiff now petitions the Court for $4,063.28 in attorney’s 3 fees and $350 in costs incurred in the form of the filing fee for Plaintiff’s Complaint. 4 II. STANDARD 5 Under the Equal Access to Justice Act (hereinafter “EAJA”), a prevailing party in any 6 civil action brought against the United States shall be reimbursed for fees and other expenses 7 incurred by that party in the action unless the position of the United States was substantially 8 justified or special circumstances make the award of fees and costs unjust. 28 U.S.C. § 9 2412(d)(1)(A); see also 28 U.S.C. §§ 1920, 2412(a) (relating to costs). “The EAJA creates 10 a presumption that fees will be awarded to prevailing parties.” Flores v. Shalala, 49 F.3d 11 562, 567 (9th Cir. 1995). To award attorney’s fees and costs under the EAJA, the Court must 12 determine that: (1) the plaintiff is the prevailing party; (2) the government has not met its 13 burden of showing that its positions were substantially justified or that special circumstances 14 make an award unjust; and (3) the requested attorney’s fees and costs are reasonable. Perez- 15 Arellano v. Smith, 279 F.3d 791, 793 (9th Cir. 2002). It is undisputed that Plaintiff is the 16 prevailing party, and Defendant has not argued that any special circumstances make an award 17 unjust or that the requested fees and costs are unreasonable. Instead, Defendant contends that 18 her position in defending the ALJ’s decision denying benefits was substantially justified. 19 Defendant also points out that Plaintiff’s request for $350 for filing costs would be payable 20 from the Judgment Fund, not agency funds. (Response, p. 1); see also Lopez v. Astrue, 2011 21 WL 1211562, at *1 (D.Ariz. Mar. 30, 2011) (“[C]osts, unlike expenses, are administered by 22 the Department of Justice.”). 23 The Commissioner bears the burden of proving that her position was substantially 24 justified at each stage of the proceeding. Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir. 25 1998). Substantial justification for purposes of the EAJA means that the Commissioner’s 26 position had “a reasonable basis in law and fact.” 27 Commissioner’s positions must be “justified to a degree that could satisfy a reasonable 28 person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). See also Lewis v. Barnhart, 281 -2- Id. (citations omitted). The 1 F.3d 1081, 1183 (9th Cir. 2005) (“The Commissioner is ‘substantially justified’ if his position 2 met the traditional reasonableness standard–that is justified in substance or in the main, or 3 to a degree that could satisfy a reasonable person.” (internal quotation marks and citations 4 omitted)). The Commissioner’s position can be substantially justified even if it is not correct. 5 Pierce, 487 U.S. at 566. The appropriate scope of inquiry in deciding substantial justification 6 is restricted to the issue or issues which led to remand. See Lewis, 281 F.3d at 1085. Further, 7 in deciding whether the Commissioner was substantially justified in her position, the Court 8 must examine both the underlying agency conduct as well as the Commissioner’s defense of 9 that conduct. Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988). 10 III. DISCUSSION 11 In her Opening Brief, Plaintiff argued that the ALJ improperly rejected the opinion 12 of her treating physician, Dr. Gecosala. The Court agreed and remanded the matter for 13 further proceedings. Defendant’s position was that the ALJ reasonably considered Dr. 14 Gecosala’s opinion and, therefore, the ALJ’s RFC finding was supported by substantial 15 evidence. Acknowledging that the ALJ was required to set forth specific and legitimate 16 reasons supported by substantial evidence in the record to reject Dr. Gecosala’s opinion, 17 Defendant accepted and relied upon the ALJ’s characterization of the evidence that Dr. 18 Gecosala treated Plaintiff only for a limited time, Dr. Gecosala’s examinations of Plaintiff 19 were not as thorough as other physicians’ examinations with regard to Plaintiff’s physical 20 capacity, and Dr. Gecosala’s opinion was contradicted by the examining state agency 21 physician, Dr. Petronella. In Plaintiff's case, the cited reasons for rejecting Dr. Gecosala's 22 opinion were not supported with specificity, nor could it reasonably be argued that they were 23 supported by substantial evidence in the record. Further, Defendant’s position that Dr. 24 Petronella’s opinion was based on independent clinical findings constituting substantial 25 evidence sufficient to support rejection of Dr. Gecosala’s opinion was foreclosed given that 26 there was no appreciable difference between their diagnoses, nor did Defendant cite any 27 reasonable basis for determining otherwise. See Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 28 2007) (where the diagnoses of the treating doctor and examining doctor are the same but their -3- 1 conclusions about the plaintiff’s functional limitations differ, the examining doctor’s 2 conclusion based on his examination is not considered to be an “independent finding” and 3 his “opinion does not alone constitute substantial evidence to support rejection of...[the 4 plaintiff’s] treating physicians’ opinions.”). On the instant record, Defendant’s position did 5 not have a reasonable basis in law and fact and, thus, Defendant was not substantially 6 justified in defending the ALJ’s rejection of Dr. Gecosala’s opinion. 7 IV. CONCLUSION 8 In the context of the instant record, the Commissioner’s position on the issues on 9 which remand were based were not substantially justified. Consequently, Plaintiff is entitled 10 to the requested costs and attorney’s fees. 11 Accordingly, 12 IT IS ORDERED that Plaintiff’s Petition for Attorney’s Fees Under the Equal Access 13 to Justice Act (Doc. 22) is GRANTED in the amount of $4,063.28 in attorney’s fees. 14 IT IS FURTHER ORDERED that pursuant to 28 U.S.C. §2412(a)(1), Plaintiff is 15 awarded $350 in costs, to be paid out of the Judgment Fund, as administered by the 16 Department of Justice. 17 The Clerk of Court is DIRECTED to amend the judgment accordingly. 18 The Clerk of Court is FURTHER DIRECTED to amend the docket to reflect that 19 Carolyn W. Colvin, Acting Commissioner of the Social Security Administration, has been 20 substituted as the named Defendant in this action pursuant to Fed.R.Civ.P. 25(d). 21 DATED this 13th day of May, 2013. 22 23 24 25 26 27 28 -4-

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