Orozco v. Commissioner of Social Security Administration

Filing 21

ORDER: that the Motion for Attorney Fees (Doc. 17 ) is GRANTED. IT IS FURTHER ORDERED that Plaintiff is awarded attorney fees in the amount of $8,411.87. IT IS FURTHER ORDERED that the Clerk of the Court shall amend the Judgment accordingly. Signed by Senior Judge David C Bury on 12/17/2018. (MCO)

1

WO

2
3
4
5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE DISTRICT OF ARIZONA

7
8

Joshua Orozco,

No. CV-17-00308-TUC-DCB

Plaintiff,

9
10

v.

11

Commissioner
Administration,

ORDER

12
13
14

of

Social

Security

Defendant.
On March 8, 2018, the Court reversed the final decision of the Defendant, Nancy

15

A. Berryhill, Acting Commissioner of Social Security (Commissioner), without a remand

16

for a rehearing and an award of benefits, (Order (Doc. 15)), with Judgment for the

17

Plaintiff, (Judgment (Doc. 16)). Accordingly, the Plaintiff is a prevailing party. 42

18

U.S.C. § 405(g); Shalala v. Schaefer, 509 U.S. 292, 296-97 & n.2 (1993). He meets the

19

statutory requirement for an award of attorney fees because his net worth did not exceed

20

$2,000,000 when the civil action was filed. 28 U.S.C. § 2412(d)(2)(B). The purpose of an

21

attorney fee award under the Equal Access to Justice Act (EAJA) is to enable private

22

litigants, like the Plaintiff, to afford the expense of seeking review of unreasonable

23

government action and to encourage litigants of limited means, like the Plaintiff, to

24

vindicate their rights. Scarborough v. Principi, 541 U.S. 401, 417 (2004).

25

Plaintiff is entitled to attorney fees under the EAJA if the Commissioner’s position

26

was not substantially justified. 28 U.S.C. § 2412(d)(1)(B). The Commissioner has the

27

burden of persuasion to show that her position was substantially justified, Scarborough,

28

541 U.S. at 414-15, meaning the Commissioner’s position had a reasonable basis in law

1

and in fact, Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988). When substantial

2

evidence does not support an agency’s decision, only in a decidedly unusual case will the

3

government’s position be substantially justified. Campbell v. Astrue, 736 F.3d 867, 869

4

(9th Cir. 2013); Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005).

5

As described by the Defendant, “the ALJ erred by failing to articulate legally

6

sufficient reasons for discounting N.P. Danker’s opinion, (Response (doc. 19) at 2-3), “that

7

‘even absent the cannabis dependence,’ the Plaintiff’s limitations would NOT change,”

8

(Order (Doc. 15) at 11). The Defendant frames the error as a “run-of-the-mill error in

9

articulation insufficient to make the Commissioner’s position unjustified. (Response (Doc.

10

19) at 3.)

11

Not so. The Court found the ALJ erred in rejecting N.P. Danker’s opinion because

12

as an “other medical source,” the ALJ had to provide germane reasons to reject her

13

opinions. The Court addressed the ALJ’s decision to give her opinion only “partial weight”

14

because he found it was “not entirely consistent with the medical evidence of record.’”

15

(Order (Doc. 15) at 12 (citing AR at 34)). The Court criticized the ALJ’s finding because

16

he “did not identify the medical evidence of record contrary to N.P. Danker’s opinion.” Id.

17

at 15. “[I[n fact, Dr. Marks and the two agency psychiatrists all failed ‘to address the

18

distinctions in the claimant’s functioning with and without substance abuse.’” Id. at 12.

19

The only evidence even mentioned by the ALJ were GAF scores. Id. The Defendant

20

argues that “although the Court found that the GAF scores ‘are not substantial evidence’

21

supporting the ALJ’s finding, [] they nevertheless amount to a reasonable basis in fact for

22

that position.” (Response (Doc. 19) 3-4.) Defendant argues that the Court specifically

23

found that Plaintiff’s GAF scores “arguably improved” when Plaintiff stopped using

24

substances, and this amounted to “some evidence” supporting the Commissioner’s

25

position. Id. at 4.

26

Not so. The Court found “that the mere fact of arguably improved GAF scores,

27

standing alone, is not a germane reason for rejecting N.P. Danker’s opinion that even absent

28

cannabis dependence, the Plaintiff’s limitations would not change.” (Order (Doc. 15) at

-2-

1

16.) Even if the Court considered the GAF score of 60 improved as argued by Defendant,

2

it and certainly Plaintiff’s lesser scores reflected moderate limitations which satisfy the

3

standard for a severe impairment at step two of the disability determination that a

4

claimant’s disability has more than a minimal effect on daily living activities. Id. at 13-14.

5

Hence, the Court’s conclusion that the ALJ’s rationale made “no sense,” id. at 13, and there

6

was “not substantial evidence to support a finding that if drug use were stopped the

7

Plaintiff’s remaining limitations would not be severe,” id. at 15. The Court found that the

8

ALJ’s decision was based on credibility determinations based on legally insufficient vague

9

boilerplate rationales. Id. at 16, n.18.

10

After reviewing its findings and conclusion that the Commissioner’s decision was

11

not supported by substantial evidence, the Court finds that the agency’s decision was not

12

substantially justified, i.e., it did not have a reasonable basis in law or fact. The

13

Government has not carried its burden to challenge an award of attorney fees under the

14

EAJA for the Plaintiff. There being no objection from Defendant related to the amount of

15

fees requested by the Plaintiff, the Court finds the amount requested complies with the

16

provisions of the EAJA because both the hourly rate and number of hours related to the

17

attorney fee request are reasonable. See 28 U.S.C. § 2412(d)(2)(A) ($125.00 per hour is

18

the EAJA statutory rate, enhanced for the cost-of-living for 2017 is $196.79 and for 2018

19

is $200.09), see also (Memo Supporting Motion for Attorney Fees (Doc. 18), Ex. B and

20

C; Reply (Doc. 20) at 7.)

21
22

Plaintiff, Joshua Orozco, has moved the Court to award him $8,411.87 in attorney
fees under the EAJA, 28 U.S.C. § 2412(d).

23

Accordingly,

24

IT IS ORDERED that the Motion for Attorney Fees (Doc. 17) is GRANTED.

25

IT IS FURTHER ORDERED that Plaintiff is awarded attorney fees in the amount

26
27
28

of $8,411.87.
IT IS FURTHER ORDERED that if, after receiving the Court’s EAJA fee order,
the Defendant determines upon effectuation of the Court’s EAJA fee order that Plaintiff

-3-

1

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

2

will be made payable to Plaintiff’s attorney. However, if there is a debt owed that is

3

subject to offset under the Treasury Offset Program, the remaining EAJA fees after offset

4

will be paid by a check made out to Plaintiff but delivered to Plaintiff’s attorney Meghan

5

McNamara Miller.

6
7
8

IT IS FURTHER ORDERED that the Clerk of the Court shall amend the
Judgment accordingly.
Dated this 17th day of December, 2018.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-4-