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Register v. Colvin

United States District Court, D. Arizona

January 30, 2017

David Eugene Register, Plaintiff,
v.
Carolyn W. Colvin, Commissioner of the Social Security Administration, Defendant.

          ORDER

          Michelle H. Bums United States Magistrate Judge

         Pending before the Court is Plaintiff David Eugene Register's Motion for Award of Attorney's Fees Pursuant to the Equal Access to Justice Act (“EAJA”) (Doc. 34). After reviewing the administrative record and the arguments of the parties, the Court now issues the following ruling.

         BACKGROUND

         Plaintiff filed applications for disability insurance benefits and supplemental security income pursuant to Titles II and XVI of the Social Security Act in July 2011, alleging disability beginning August 7, 2009. These claims were denied initially and upon reconsideration. After a subsequent hearing, an ALJ issued a decision denying Plaintiff's claims. The Appeals Council denied Plaintiff's request for review, thereby making the ALJ's decision the final decision of the Commissioner. Plaintiff sought judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g).

         In his opening Brief, Plaintiff argued that the ALJ erred by: (1) failing to adequately consider the opinion of examining psychologist, Minette Doss, Ed.D.; (2) failing to account for limitations in concentration, persistence, and pace in the RFC; and (3) failing to provide legally sufficient reasons to discount his credibility. Plaintiff requested that the Court vacate the decision of the ALJ and remand for a determination of benefits.

         In response to Plaintiff's Brief, the Commissioner filed a Brief Requesting Remand conceding that the ALJ's decision contained errors, and stating that outstanding issues must be addressed before it can be determined whether Plaintiff is disabled. Specifically, the Commissioner stated that prior to reaching any conclusions about whether Plaintiff is disabled within the meaning of the Social Security Act, it is essential that the fact-finder derive an RFC after considering and weighing all the evidence in the record, and present that RFC to a vocational expert for an evaluation of Plaintiff's ability to perform work. On remand, the Commissioner argued that the ALJ should (1) update the record; (2) hold a de novo hearing; (3) reevaluate the credibility of Plaintiff's subjective complaints; (4) reevaluate the medical evidence, including the opinion of Dr. Doss; (5) re-assess Plaintiff's RFC; and (6) continue the sequential evaluation process as appropriate.

         Therefore, the only issue before the Court was whether this matter should be reversed and remanded for further proceedings or for an award of benefits. After reviewing the administrative record and the arguments of the parties, the Court remanded the matter to the Commissioner for further proceedings. Specifically, the Court stated:

Here, the parties agree that the ALJ erred in assessing Plaintiff's RFC by failing to properly consider Dr. Doss' opinion and failing to properly account for limitations in concentration, persistence, and pace. Further, it appears that the ALJ relied upon an erroneous evaluation of the objective medical evidence, in part, to discount Plaintiff's credibility.
The Court finds ... that there are identifiable issues to be resolved on remand, notably whether Plaintiff is disabled. Although the parties concede, and the record reflects that the ALJ erred in failing to provide adequate reasons for his findings and conclusion, the ALJ did identify some conflicting evidence in the record that would seem to support a finding of non-disability. (Tr. at 18-21.) Thus, because there are outstanding issues to be resolved, the Court will remand for further administrative proceedings. Specifically, remand is appropriate for a renewed residual functional capacity assessment, which explicitly considers and reevaluates the opinion of Dr. Doss in conjunction with all other objective medical evidence, as well as, Plaintiff's subjective complaints.

         DISCUSSION

         The Ninth Circuit has succinctly stated the legal standard for an award of attorneys' fees under the EAJA as follows:

EAJA provides that a court shall award to a prevailing party other than the United States fees and other expenses incurred by that party in any civil action unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. It is the government's burden to show that its position was substantially justified. Substantial justification means justified in substance or in the main - that is, justified to a degree that could satisfy a reasonable person. Put differently, the government's position must have a reasonable basis both in law and fact. The position of the United States includes both the government's litigation position and the underlying agency action giving rise to the civil action. Thus, if the government's underlying position was not substantially justified, we must award fees and need not address whether the government's litigation position was justified.

Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014) (citations, quotation marks, and alterations omitted).

         When awarding attorneys' fees under the EAJA, the Court should reimburse the prevailing party only for those fees which are reasonably expended by that party's counsel. See 28 U.S.C. § 2412(d)(2)(A). The prevailing party bears the burden of proving the reasonableness of his request through sufficiently detailed accounts of hours expended on particular tasks so that the Court can evaluate his application. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Neil v. Comm'r of Soc. Sec., 495 Fed.Appx. 845, 846 (9th Cir. 2012) (“A fee applicant should maintain billing records in a manner that enables a reviewing court to easily identify the hours reasonably expended.” (quotation omitted)). Generally, if the Court reduces a fee application it must provide a reason, however, “a district court can impose a reduction of up to 10 percent - a ‘haircut' - ...


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