Schiel-Leodoro v. Colvin

Filing 41

ORDER granting 27 Motion for Attorney Fees Signed by Magistrate Judge Jeremiah C. Lynch on 6/8/2016. (TXB, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
CATHERINE SCHIEL-LEODORO,

CV 14–276–M-DLC–JCL

Plaintiff,
ORDER

vs.

CAROLYN W. COLVIN, Commissioner
of Social Security Administration
Defendant.

On February 23, 2016, the Court entered an order reversing the
Commissioner’s decision denying Plaintiff Catherine Schiel-Leodoro’s application
for disability insurance benefits and supplemental security income benefits. (Doc.
28). This matter comes before the Court now on Plaintiff’s application for an
award of attorney’s fees in the amount of $13,243.49 pursuant to the Equal Access
to Justice Act, 28 U.S.C. § 2412(d) (EAJA). The $13,243.49 in attorney’s fees
sought represents a total of 69.6 hours of work performed at the hourly rate of
$190.28.

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The EAJA provides that a party who prevails in a civil action against the
United States is entitled to an award of attorney’s fees “unless the court finds that
the position of the United States was substantially justified” or special
circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). A presumption
arises under the EAJA “that fees will be awarded to prevailing parties....” Flores
v. Shalala, 49 F.3d 562, 567 (9th Cir. 1995). The Commissioner thus bears the
burden of proving that her position was substantially justified. Yang v. Shalala,
22 F.3d 213, 217 (9th Cir. 1994).
In determining whether the Commissioner’s position was substantially
justified, “the court should look to the government’s decision to defend on appeal
the procedural errors committed by the ALJ.” Corbin v. Apfel, 149 F.3d 1051,
1053 (9th Cir. 1998). See also Flores, 49 F.3d at 570 (the question is not whether
the Commissioner’s position on the ultimate question of disability was reasonable,
but whether the Commissioner was substantially justified in her position with
respect to the errors that led to remand).
The Commissioner does not dispute that Plaintiff is a prevailing party for
purposes of an EAJA fee award. Nor does the Commissioner challenge the
number of hours for which Plaintiff seeks to recover fees. The Commissioner
instead argues in opposition to Plaitniff’s fee request that the government’s

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position in this case was substantially justified. In doing so, the Commissioner
essentially reiterates the argument already rejected by the Court on summary
judgment. She maintains the ALJ was not required to specifically address the
opinion of examining psychologist Dr. Theresa Reed, and any error on the ALJ’s
part in not doing so was harmless. The Court found to the contrary, and held the
ALJ erred by not providing specific and legitimate reasons, supported by
substantial evidence, for discounting Dr. Reed’s opinion.
This Court finds that the Commissioner has not satisfied her burden of
proving that the government’s decision to defend the ALJ’s error was substantially
justified. In addition, the Commissioner points to no other circumstances that
would make an award of fees in this case unjust. Accordingly,
IT IS ORDERED that Plaintiff’s motion for attorney fees in the amount of
$13,243.49 is GRANTED.
IT IS FURTHER ORDERED that if, after receiving the Court’s EAJA fee
order, the Commissioner (1) determines upon effectuation of the Court’s EAJA fee
order that Plaintiff does not owe a debt that is subject to offset under the Treasury
Offset Program, (2) agrees to waive the requirements of the Anti-Assignment Act,
and (3) is provided a valid assignment of fees executed by Plaintiff, the fees will
be made payable to Plaintiff’s attorney. However, if there is a debt owed under

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the Treasury Offset Program, the Commissioner cannot agree to waive the
requirements of the Anti-Assignment Act, and the remaining EAJA fees after
offset will be paid by a check made out to Plaintiff, but delivered to Plaintiff’s
attorney.
DATED this 8th day of June, 2016.

Jeremiah C. Lynch
United States Magistrate Judge

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