United States District Court, D. Arizona
CHARLES R. PYLE United States Magistrate Judge.
September 30, 2014, the Court filed an Order remanding this
case to the Commissioner for further proceedings. (Doc. 32,
Order). Plaintiff through counsel has filed a Motion for
Attorney Fees Under the Equal Access to Justice Act
(“EAJA”) (28 U.S.C. § 2412(d)) (Doc. 36,
EAJA Motion) and Memorandum in Support (Doc. 37). Defendant
has filed an Objection to Plaintiff's Motion for Attorney
Fees (Doc. 38, Objection), and Plaintiff has filed an EAJA
Reply Brief (Doc. 39, EAJA Reply). Plaintiff's attorney
also has filed a Motion for Attorney Fees Under 42 U.S.C.
§ 406(b) (Doc. 40, § 406(b) Motion) and Brief in
Support (Doc. 41), and Defendant has filed a Response (Doc.
42). This case is before the Magistrate Judge based on the
parties' consent. (Doc. 23).
Plaintiff's Motion for Attorney's Fees Under the
EAJA Motion, Plaintiff seeks $6, 223.43 in attorney's
fees. (EAJA Motion at 1). Plaintiff has submitted the
affidavits of the three attorneys who worked on the case and
itemized statements showing the attorneys' time on the
case as 33.2 hours. (Doc. 37 at 7-8 & Ex. B, C & D).
In the EAJA Reply, Plaintiff makes a supplemental request for
$760.24 regarding four hours of additional attorney time for
preparing the EAJA Reply, resulting in a cumulative total
request of $6, 983.67. (EAJA Reply at 10-11).
contends in the Objection that the Commissioner's
decision was substantially justified. Defendant asserts that,
if the Court awards attorney fees, any award should be made
payable to Plaintiff rather than to Plaintiff's counsel
based on Astrue v. Ratliff, 560 U.S. 586 (2010),
subject to offset under the Treasury Offset Program.
Plaintiff is Entitled to an Award of Attorney's
EAJA provides that a prevailing party in a civil suit against
the federal government shall be awarded attorney's fees
unless the court finds that the government's position was
substantially justified or that special circumstances make
the award unjust. 28 U.S.C. § 2412(d)(1)(A). Defendant
does not dispute Plaintiff's prevailing party status or
contend that special circumstances make the award unjust.
Defendant contends that the government's position was
the “substantially justified” standard under the
EAJA, “the government must advance a position that is
‘justified in substance or in the main - that is,
justified to a degree that could satisfy a reasonable
person.'” Le v. Astrue, 529 F.3d 1200,
1201 (9th Cir. 2008) (quoting United States v.
Marolf, 277 F.3d 1156, 1161 (9th Cir. 2002)).
“[T]he government's position must have a reasonable
basis in law and fact” and “be substantially
justified at each stage of the proceedings.” Shafer
v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008). The
court's inquiry is limited to the issues that led to
remand. Hardisty v. Astrue, 592 F.3d 1072, 1078 (9th
Cir. 2010). The Commissioner has the burden to show that its
position was substantially justified or that special
circumstances exist to make an award unjust. Gutierrez v.
Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001). Defendant
contends her position was substantially justified, that is,
reasonable in law and fact, even though the Court found that
remand was necessary.
deciding the merits, the Court found that the opinion
expressed by Plaintiff's treating physiatrist Jon
Ostrowski, M.D., had been improperly discounted by the
Administrative Law Judge (“ALJ”). Dr. Ostrowski
had opined that Plaintiff could not continue working as a
dentist due to degenerative arthritis, degenerative disc
disease, and chronic neck problems. (Order at 5). The ALJ
instead credited the findings of non-examining state agency
Doctors Kurtin and Falhberg who found that Plaintiff was not
precluded from performing a significant range of light work.
(Id.). In the present Objection, Defendant agues
that the ALJ reasonably contrasted the limitations expressed
by Dr. Ostrowski with those of Doctors Kurtin and Falhberg.
(Objection at 5-7). The Court found, however, that Defendant
cited no authority in arguing that the ALJ only needed to
acknowledge that Dr. Ostrowski was a treating physician in
failing to reference him as a specialist, that the ALJ failed
to state specific and legitimate reasons for rejecting Dr.
Ostrowski's opinion, and Defendant argued grounds on
which the ALJ could have rejected Dr . Ostrowski's
opinion but did not. (Order at 8). The Court found that
Plaintiff had “correctly note[d] [that] it was neither
logical nor reasonable for the ALJ at step four to reject Dr.
Ostrowski's specific opinions relevant to the performance
of Plaintiff's past work as a dentist on the grounds that
the treating physician did not opine that Plaintiff could not
perform any activity at all.” (Order at 10). The Court
further found as an “unsound analysis” the
ALJ's finding that the State agency reviewers determined
that the exertional level generally performed by a dentist is
light which Plaintiff is not precluded from performing.
“The opinion of a non-examining physician cannot by
itself constitute substantial evidence that justifies the
rejection of the opinion of either an examining physician or
a treating physician.” Lester v. Chater, 81
F.3d 821, 831 (9th Cir. 1995). Finally, the ALJ's comment
that Dr. Ostrowski's opinions were inconsistent with Dr.
Ostrowski's observation that Plaintiff did not wish to
pursue additional pain medication or more aggressive
treatment, or that Plaintiff had reported not taking pain
medication regularly, was not an appropriate standard for
interpreting or rejecting Dr. Ostrowski's opinion as to
Plaintiff's existing impairments. (Order at 10-11).
argues in her Objection that the ALJ reasonably concluded
that Plaintiff's daily activities contradicted his claims
of debilitating impairment. (Objection at 8). In determining
that remand for further proceedings was appropriate, the
Court noted that a reassessment of Dr. Ostrowski's
opinion will impact the ALJ's existing credibility
finding. (Order at 12). Defendant argues in her Objection
that the ALJ properly considered the lay testimony.
(Objection at 8-9). However, the Court noted that Defendant
“conced[ed] that lay testimony cannot be rejected
solely because it is unsupported by the medical
evidence.” (Order at 15).
government's defense of “basic and fundamental
errors” cannot be considered as substantially
justified. Shafer, 518 F.3d at 1071-72 (holding,
inter alia, that it was legal error to discredit
claimant's testimony without giving clear and convincing
reasons and to reject a treating physician's opinion
without providing adequate reasons for doing so, and that the
Commissioner was not substantially justified in defending
it). Because of the ALJ's several fundamental errors,
Defendant's position was not substantially justified.
of the Attorney Fees Request
attorney fees request is based on 33.2 hours of attorney time
at the 2013 and 2014 hourly rates that correspond to the
rates calculated by the Court of Appeals for the Ninth
Circuit. (EAJA Mem. at 7). Defendant has not objected to the
hours of attorney time or to the hourly rate. The Court finds
that Plaintiff's request for a total cumulative fee award
of $6, 983.67, which includes the attorney time and fee
amount for preparing the EAJA Reply, is reasonable.
Plaintiff's Motion for Attorney Fees under the EAJA will