Antunez v. Commissioner of Social Security Administration
Court Docket Sheet

District of Arizona

2:2016-cv-01072 (azd)

ORDER - The decision of the Commissioner is reversed and remanded for further proceedings consistent with this decision and the Clerk shall enter judgment accordingly. Signed by Senior Judge James A Teilborg on 05/01/2017.

Case 2:16-cv-01072-JAT Document 21 Filed 05/02/17 Page 1 of 4 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Maria Antunez, No. CV-16-01072-PHX-JAT 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Plaintiff’s appeal of the denial of her application for 16 social security disability benefits by the Defendant. 17 I. Standard of Review 18 The decision of Administrative Law Judge ("ALJ") to deny benefits will be 19 overturned "only if it is not supported by substantial evidence or is based on legal error." 20 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (quotation omitted). 21 "Substantial evidence" means more than a mere scintilla, but less than a preponderance. 22 Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). 23 "The inquiry here is whether the record, read as a whole, yields such evidence as 24 would allow a reasonable mind to accept the conclusions reached by the ALJ." Gallant v. 25 Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation omitted). In determining whether 26 there is substantial evidence to support a decision, the Court considers the record as a 27 whole, weighing both the evidence that supports the ALJ’s conclusions and the evidence 28 that detracts from the ALJ’s conclusions. Reddick, 157 F.3d at 720. "Where evidence is Case 2:16-cv-01072-JAT Document 21 Filed 05/02/17 Page 2 of 4 1 susceptible of more than one rational interpretation, it is the ALJ’s conclusion which 2 must be upheld; and in reaching his findings, the ALJ is entitled to draw inferences 3 logically flowing from the evidence." Gallant, 753 F.2d at 1453 (citations omitted); see 4 Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This is 5 because "[t]he trier of fact and not the reviewing court must resolve conflicts in the 6 evidence, and if the evidence can support either outcome, the court may not substitute its 7 judgment for that of the ALJ." Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); 8 see also Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990). 9 II. Issues on Appeal 10 On appeal, Plaintiff raises three claims of error: 1) ALJ erred in concluding 11 Plaintiff could perform her past work; 2) the ALJ erred in not crediting Plaintiff’s treating 12 physicians; and 3) the ALJ erred in not crediting Plaintiff’s symptom testimony. 13 Although in the opening brief Plaintiff pursues all three claims of error, in her reply brief, 14 she relies only on the first theory. 15 A. Plaintiff’s past work 16 As to Plaintiff’s first claim of error – that the ALJ erred in concluding that 17 Plaintiff could perform her past work – Defendant concedes error. (Doc. 18 at 3). 18 However, Defendant argues that the error was harmless. (Id.). 19 Specifically, the ALJ found that: 20 The record indicated that the claimant worked as a cashier/checker from June of 1997 until January of 2000, and the claimant worked as a 21 garment sorter from January of 2003 until April of 2003. The record also indicated that the claimant received income at substantial gainful activity 22 level at these positions. 23 (Doc. 13-3 at 17). 24 The undisputed facts on appeal are that, from 1997-2000, Plaintiff worked as a 25 meat packer, not as a cashier. (Doc. 19 at 3). Plaintiff argues, and Defendant does not 26 dispute, that the cashier position would be light work, at level 3, and the meat packer 27 position would be medium work, at level 2. (Doc. 16 at 25). Further, while Plaintiff did 28 work as a garment sorter from January 2003 to April 2003, her income at that position-2-Case 2:16-cv-01072-JAT Document 21 Filed 05/02/17 Page 3 of 4 1 did not rise to the substantial gainful activity level. (Doc. 19 at 3). Thus, the ALJ’s 2 factual findings regarding the 1997-2000 job and the 2003 job are not supported by the 3 record. 4 Defendant argues, however, that these errors were harmless because Plaintiff 5 worked at a job as a cashier and garment sorter in 2006 and 2007 and earned income at 6 the substantial gainful activity level in that position. (Doc. 18 at 4). Thus, Defendant 7 concludes that while the ALJ’s articulated facts are incorrect, the record supports the 8 ALJ’s ultimate conclusion. 9 Plaintiff replies and argues that the errors are not harmless for two reasons. First, 10 Plaintiff argues that as a matter of law, defense counsel cannot supply post hoc 11 rationalizations to substitute for the actual reasons given by the ALJ. (See Doc. 19 at 2 12 and cases cited therein). Second, Plaintiff argues that, as a matter of fact, the 2006-2007 13 job on which Defendant now relies was a composite job that encompasses more than one 14 job listed in the Dictionary of Occupational Titles and included more than only cashiering 15 and garment sorting. (Doc. 19 at 4-5). Plaintiff concludes that because there was no 16 testimony before the ALJ regarding whether Plaintiff could do all the components of the 17 2006-2007 job, it would be error for this Court to conclude that Plaintiff can perform this 18 job. 19 B. Conclusion 20 The Court agrees with Plaintiff that on this record, this Court cannot determine 21 whether Plaintiff can perform her past work at the substantial gainful activity level. In 22 her reply, Plaintiff seeks to have this matter, "remanded for further administrative 23 proceedings, including but not limited to, a new administrative hearing and ALJ 24 decision." (Doc. 19 at 6). 25 As discussed above, in her opening brief, Plaintiff raised two additional claims of 26 error. Because this Court has determined that remand is required, and because Plaintiff 27 did not continue to pursue these additional two theories in her reply, this Court will not 28 reach them in this appeal. Thus, while the Court agrees that a new administrative-3-Case 2:16-cv-01072-JAT Document 21 Filed 05/02/17 Page 4 of 4 1 hearing, additional vocational expert testimony, and a new ALJ decision is required on 2 remand to address the errors found herein, the Court will not order a de novo hearing on 3 all issues. However, to the extent necessary to determine whether Plaintiff can perform 4 her past work, the ALJ has the discretion to conduct a de novo hearing. 5 Based on the foregoing, 6 IT IS ORDERED that the decision of the Commissioner is reversed and 7 remanded for further proceedings consistent with this decision and the Clerk of the Court 8 shall enter judgment accordingly.1 9 Dated this 1st day of May, 2017. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 To the extent a mandate is require, the judgment shall serve as the mandate.-4-

CLERK'S JUDGMENT - IT IS ORDERED AND ADJUDGED that pursuant to the Court's Order filed May 2, 2017, the decision of the Commissioner is reversed, and this case is remanded to the Social Security Administration for further proceedings consistent with the Order.

Case 2:16-cv-01072-JAT Document 22 Filed 05/02/17 Page 1 of 1 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Maria Antunez, NO. CV-16-01072-PHX-JAT 10 Plaintiff, JUDGMENT IN A CIVIL CASE 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Decision by Court. This action came for consideration before the Court. The 16 issues have been considered and a decision has been rendered. 17 IT IS ORDERED AND ADJUDGED that pursuant to the Court’s Order filed May 18 2, 2017, the decision of the Commissioner is reversed, and this case is remanded to the 19 Social Security Administration for further proceedings consistent with the Order. 20 Brian D. Karth District Court Executive/Clerk of Court 21 22 May 2, 2017 s/Katrina Smith 23 By Deputy Clerk 24 25 26 27 28

MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Maria Antunez.

Case 2:16-cv-01072-JAT Document 23 Filed 08/02/17 Page 1 of 3 1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Maria Antunez 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Maria Antunez, 13 14 Plaintiff, Civil No. 2-16-cv-01072-PHX-JAT 15 16 vs. MOTION FOR ATTORNEY’S 17 FEES PURSUANT TO THE 18 Commissioner of Social Security, EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412 19 Defendant 20 21 PLAINTIFF’S MOTION FOR ATTORNEY’S FEES PURSUANT TO THE 22 EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412 23 24 COUNSEL: 25 PLEASE TAKE NOTICE that upon the annexed affirmation of Howard 26 27 D. Olinsky, attorney for the plaintiff, and other papers, the plaintiff will make a 28 motion before Hon. James A. Teilborg, at Sandra Day O’Connor U.S. Courthouse, Page 1 Case 2:16-cv-01072-JAT Document 23 Filed 08/02/17 Page 2 of 3 1 Suite 523, 401 West Washington Street, SPC 51, Phoenix, AZ 85003 on a date to 2 be set by the court, for an order: 3 4 1. Awarding an Equal Access to Justice Act Counsel Fee for $6,328.45, and 5 2. Awarding Expenses in the amount of $16.62; and 6 7 3. If the Plaintiff has no debt registered with the Department of Treasury 8 subject to offset that the fees be made payable to the attorney. 9 10 Plaintiff, by her attorney, Howard D. Olinsky moves the court for an award to be 11 paid by the Defendant under the Equal Access to Justice Act, 28 USCS § 2412. 12 13 14 Plaintiff may receive an award under the Equal Access to Justice Act because he is 15 the prevailing party, is an individual whose net worth did not exceed two million 16 17 dollars when the action was filed, and the position of the United States in this 18 litigation and/or at the agency was not substantially justified. Although the burden 19 of proof on substantial justification is on the government, Plaintiff’s supporting 20 21 memorandum briefly addresses this issue. 22 23 There are no special circumstances in this case which make an award under the 24 25 EAJA unjust. 26 This motion is supported by an affirmation of Plaintiff’s attorney, attached time 27 and cost records and an Affidavit and Waiver of Direct Payment by the plaintiff. 28 Page 2 Case 2:16-cv-01072-JAT Document 23 Filed 08/02/17 Page 3 of 3 1 2 Executed this July 26, 2017 3 4 Respectfully submitted, 5/s/Howard D. Olinsky 6 Howard D. Olinsky, Esq. Admitted Pro Hac Vice 7 Attorney for Plaintiff 8 Email: fedct@windisability.com 9 To: John S. Leonardo, Esq. 10 United States Attorney 11 Sarah Moum, Esq. 12 Special Assistant U.S. Attorney Office of the General Counsel 13 Social Security Administration 14 701 Fifth Avenue, Suite 2900 M/S 221A 15 Seattle, WA 98104 State Bar No. WA42086 16 Telephone: (206) 615-2936 17 Facsimile: (206) 615-2531 18 Email: sarah.moum@ssa.gov Attorneys for Defendant 19 20 21 22 23 24 25 26 27 28 Page 3

Affirmation in Support of Motion

Case 2:16-cv-01072-JAT Document 23-1 Filed 08/02/17 Page 1 of 4 1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Maria Antunez 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Maria Antunez, 13 14 Plaintiff, Civil No. 2-16-cv-01072-PHX-JAT 15 16 vs. Attorney’s affirmation in support of 17 Fees Pursuant to the Equal Access to 18 Commissioner of Social Security, Justice Act, 28 U.S.C. § 2412 19 Defendant 20 21 Attorney’s affirmation in support of Fees Pursuant to the Equal Access to 22 Justice Act, 28 U.S.C. § 2412 23 ________________________________________ STATE OF NEW YORK) 24 COUNTY OF ONONDAGA) ss: 25 Howard D. Olinsky, being duly sworn deposes and states: 26 27 1. I am an attorney licensed to practice law in the State of New York, 28 admitted to practice pro hac vice before this Court. Page 4 Case 2:16-cv-01072-JAT Document 23-1 Filed 08/02/17 Page 2 of 4 1 2. I make this affirmation knowing that the Court will rely upon it in 2 assessing any awards under the Equal Access to Justice Act. 28 USCS § 2412. 3 4 3. There are no special circumstances in this case which make an award 5 under the EAJA unjust. 6 4. The Court ordered on May 2, 2017 that the above-entitled case be 7 8 remanded for further administrative proceedings, under the fourth sentence of 42 9 U.S.C. § 405(g). 10 5. For the Equal Access to Justice Act, I am requesting an hourly rate 11 of $192.68 for attorney time through 2017. See generally, 12 13 http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 U.S.C.A 9th 14 Circuit EAJA Table. If attorney fees are calculated at this rate for 28.9 hours of 15 work performed in 2016 and 2017 they total $5,568.45. 16 17 6. I am also requesting $100.00 per hour for 7.6 hours of paralegal time 18 equaling $760.00. I am requesting $6,328.45 for Counsel Fees which include 19 attorney and paralegal time. 20 21 7. The time accounting is presented to the court in two fashions. 22 Exhibit A is the time spent by all who worked on this case in chronological 23 sequence. Exhibit B is broken down by attorneys. The attorneys involved in this 24 25 case are Howard D. Olinsky, Esq., Paul B. Eaglin Esq., Edward Wicklund, Esq., 26 and Alyssa Van Auken, Esq. Exhibit C is broken down by paralegals. The 27 28 Page 5 Case 2:16-cv-01072-JAT Document 23-1 Filed 08/02/17 Page 3 of 4 1 paralegals involved in this case are Shannon Persse, Michael Smith, Michelle 2 Callahan, Kyrsten Gifford, and Tamica Lockwood. 3 4 8. I am requesting reimbursement of expenses of $16.62 for Certified 5 Mail for the summons and complaint to the defendants office’s as shown on 6 Exhibit D. 7 8 9. The attached records were contemporaneously created and stored in 9 the firm’s Prevail Database, and are printed out and attached. The itemized time 10 represents hours spent preparing and handling this case for U.S. District Court. 11 Clerical time is not included in this petition or has been zeroed out. 12 13 Waiver of Direct Payment of EAJA Fees 14 10. Attached is an Affidavit and Waiver of Direct Payment duly 15 executed by the plaintiff (Exhibit E). With this Waiver, if Plaintiff owes a debt 16 17 that qualifies under the Treasury Offset Program (31 USCS § 3716), any payment 18 shall be made payable to the Plaintiff and delivered to the Plaintiff’s attorney. If 19 the United States Department of Treasury determines that Plaintiff owes no debt 20 21 subject to offset, the government may accept the assignment of EAJA fees and pay 22 such fees directly to the Plaintiff’s attorney. Astrue v. Ratliff, 560 U.S. 586 (U.S. 23 2010). 24 25 26 WHEREFORE, because all four elements of an allowable application for 27 EAJA fees have been proven, petitioner requests that the Court issue an order: 28 Page 6 Case 2:16-cv-01072-JAT Document 23-1 Filed 08/02/17 Page 4 of 4 1 1. Awarding an Equal Access to Justice Act Counsel Fee for $6,328.45; 2 and 3 2. Awarding Expenses in the amount of $16.62; and 4 3. If the Plaintiff has no debt registered with the Department of Treasury 5 6 subject to offset that the fees be made payable to the attorney. 7 8 Executed this July 26, 2017 9 Respectfully submitted, 10 11/s/Howard D. Olinsky Howard D. Olinsky, Esq. 12 Admitted Pro Hac Vice 13 Attorney for Plaintiff Email: fedct@windisability.com 14 15 To: John S. Leonardo United States Attorney 16 17 Sarah Moum, Esq. Special Assistant U.S. Attorney 18 Office of the General Counsel 19 Social Security Administration 20 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104 21 State Bar No. WA42086 22 Telephone: (206) 615-2936 23 Facsimile: (206) 615-2531 24 Email: sarah.moum@ssa.gov Attorneys for Defendantt 25 26 27 28 Page 7

Exhibit A - Total Professional Time

Exhibit A Case 2:16-cv-01072-JAT Document 23-2 Filed 08/02/17 Page 2 of 3 Ledger Antunez, Maria Nicolasa Date  Subject Hours Timekeeper 2/22/2016 Files received, reviewed and processed from referral source for Attorney review 0.6 Callahan, Michelle 2/22/2016 Correspondence to Client re: Prospect acknowledgment letter mailed 0.2 Callahan, Michelle 2/25/2016 Telephone call with Client re: Debt conference call, explained process 0.4 Callahan, Michelle 3/24/2016 Review decisions and evidence to determine whether to appeal case 1 Van Auken, Alyssa 3/31/2016 FDC prospect packet prepared for Client completion 0.5 Callahan, Michelle 3/31/2016 Telephone call to Client re: Acceptance of case and review forms-Left VM 0 Callahan, Michelle 4/5/2016 Telephone call to Client re: Acceptance of case and review forms-Left VM 0 Callahan, Michelle 4/8/2016 Telephone call with Client re: Assistance with in forma pauperis application 0.5 Callahan, Michelle 4/8/2016 FDC prospect packet sent to Client via Right Signature 0.2 Callahan, Michelle 4/13/2016 FDC Prospect packet returned via Right Signature, reviewed for completion 0.3 Smith, Michael P. 4/15/2016 Draft Complaint, Proposed Summons, Letter to Clerk, and Civil Cover Sheet 0.6 Olinsky, Howard D. 4/15/2016 Review Motion to Proceed In Forma Pauperis, approve for filing 0.2 Olinsky, Howard D. 4/15/2016 File initial case documents via cm/ecf 0 Smith, Michael P. 4/18/2016 Federal Court-Accept Letter-New FDC Filing 0.3 Smith, Michael P. 4/18/2016 Download, file, save and distribute ECF re: Complaint, Civil Cover Sheet 0 Callahan, Michelle 4/18/2016 Download, file, save and distribute ECF re: Application to Proceed IFP 0 Callahan, Michelle 4/18/2016 Download, file, save and distribute ECF re: Summons submitted 0 Callahan, Michelle 4/18/2016 Dwld, file, save & distribute ECF re: Case assigned to Honorable G. Murray Snow 0 Callahan, Michelle 4/18/2016 Review Case assigned Hon. G. Murray Snow, research individual rules & practices 0.3 Olinsky, Howard D. 4/18/2016 Draft application for Pro Hac Vice admission 0 Olinsky, Howard D. 4/18/2016 Download, file, save and distribute ECF re: Motion for admission Pro Hac Vice 0 Callahan, Michelle 4/18/2016 Download, file, save and distribute ECF re: Order granting IFP application 0 Callahan, Michelle 4/18/2016 Review Order granting In Forma Pauperis application, directing service 0.1 Olinsky, Howard D. 4/18/2016 Download, file, save and distribute ECF re: Scheduling order 0 Callahan, Michelle 4/18/2016 Review Scheduling order, calender deadlines on task pad 0.3 Olinsky, Howard D. 4/18/2016 Download, file, save and distribute ECF re: Summons issued as to OCG, USAO, AG 0 Callahan, Michelle 4/18/2016 Review Summons Issued 0.2 Olinsky, Howard D. 4/22/2016 Download, file, save and distribute ECF re: Pro Hac Vice fee paid 0 Callahan, Michelle 4/22/2016 Download, file, save and distribute ECF re: Order granting Pro Hac Vice 0 Callahan, Michelle 4/22/2016 Review Order granting Motion for Pro Hac Vice 0 Olinsky, Howard D. 4/27/2016 Federal Court-Service of Process-prepare service packets USAO, OGC, AG 0.6 Callahan, Michelle 5/4/2016 Download, file, and save electronic return receipts USAO, OGC, AG 0 Callahan, Michelle 5/11/2016 Combine and file proof of service via CM/ECF 0.3 Callahan, Michelle 5/12/2016 Download, file, save and distribute ECF re: Service executed 0 Callahan, Michelle 5/12/2016 Review service executed, confirm scheduling order calendared 0.2 Eaglin, Paul B. 5/25/2016 Dwld, file, save & distribute ECF re: Notice of appearance Sarah Moum 0 Callahan, Michelle 5/26/2016 Review Notice of appearance Sarah Moum o/b/o Carolyn Colvin 0.1 Eaglin, Paul B. 7/1/2016 Download, file, save and distribute ECF re: Answer to Complaint 0 Lockwood, Tamica 7/1/2016 Review Answer to complaint 0.1 Eaglin, Paul B. 7/1/2016 Download, file and save FDC transcript in 10 (ten) parts 0.2 Lockwood, Tamica 36.50 (Type = Time) and (Category = Federal Court)    Case 2:16-cv-01072-JAT Document 23-2 Filed 08/02/17 Page 3 of 3 Date  Subject Hours Timekeeper 7/1/2016 Combine, strip PDF/A, OCR and live bookmark federal court transcript (636 pgs) 0.6 Lockwood, Tamica 7/5/2016 Preliminary review of transcript-assign Attorney writer 0.5 Eaglin, Paul B. 8/25/2016 Review Certified Administrative Record and take notes (636 pages) 4.2 Wicklund, Edward A. 8/26/2016 Drafting procedural section, drafting facts 4.3 Wicklund, Edward A. 8/29/2016 Research issues and drafting argument 2 Wicklund, Edward A. 8/30/2016 Continue researching issues and drafting arguments 8 Wicklund, Edward A. 8/30/2016 Senior Attorney review draft brief, suggest edits 0.9 Eaglin, Paul B. 8/30/2016 Implement suggested edits, finalize and file brief (n/c for filing) 0.7 Wicklund, Edward A. 8/31/2016 Correspondence to Client re: Federal Court-FYI Memo of Law Mailed 0 Gifford, Kyrsten 8/31/2016 Download, file, save and distribute ECF re: Opening brief 0 Lockwood, Tamica 9/26/2016 Emails with Opposing Counsel re: Defendant first extension request 0.2 Olinsky, Howard D. 9/27/2016 Download, file, save and distribute ECF re: First motion for extension 0 Lockwood, Tamica 9/27/2016 Download, file, save and distribute ECF re: Declaration of Sarah Moum 0 Lockwood, Tamica 9/27/2016 Review first motion for extension request by Defendant 0.1 Eaglin, Paul B. 9/27/2016 Review Declaration of Sarah Moum re: extension of time to file brief 0.1 Eaglin, Paul B. 9/27/2016 Download, file, save and distribute ECF re: Order granting Defendant extension 0 Lockwood, Tamica 9/27/2016 Review Order granting Defendant extension, update task pad 0.2 Eaglin, Paul B. 10/31/2016 Download, file, save and distribute ECF re: Response brief 0 Lockwood, Tamica 10/31/2016 Review response brief (12 pages) 0.4 Eaglin, Paul B. 10/31/2016 Assign Attorney writer to access/write reply brief 0.2 Eaglin, Paul B. 11/15/2016 Review Briefing in preparation for possible reply-research, draft reply 2.3 Wicklund, Edward A. 11/15/2016 Senior Attorney review draft reply brief, suggest edits 0.3 Eaglin, Paul B. 11/15/2016 Implement suggested edits, finalize and file reply brief (n/c for filing) 0.4 Wicklund, Edward A. 11/16/2016 Download, file, save and distribute ECF re: Reply brief 0 Lockwood, Tamica 2/22/2017 Download, file, save and distribute ECF re: Minute order reassigned Judge JAT 0 Lockwood, Tamica 2/22/2017 Review Minute order re: Case reassigned Judge James A. Teilborg, updated case # 0.2 Eaglin, Paul B. 5/2/2017 Download, file, save and distribute ECF re: Order reversed and remanded 0 Lockwood, Tamica 5/2/2017 Review Order reversed and remanded for further proceedings (4 pgs) 0.2 Wicklund, Edward A. 5/2/2017 Download, file, save and distribute ECF re: Clerk's Judgment 0 Lockwood, Tamica 5/2/2017 Review Clerk's Judgment 0.1 Wicklund, Edward A. 5/8/2017 Correspondence to Client re: FDC Remand 0.2 Callahan, Michelle 5/8/2017 Federal Court-Remand Referral back to Referral Source 0.3 Callahan, Michelle 7/18/2017 EAJA Preparation 1.5 Persse, Shannon 7/25/2017 Review Slips and Finalize EAJA Motion 0.5 Olinsky, Howard D. 7/26/2017 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Persse, Shannon 36.50 (Type = Time) and (Category = Federal Court)   

Exhibit B - Attorney Time

Exhibit B Case 2:16-cv-01072-JAT Document 23-3 Filed 08/02/17 Page 2 of 2 Ledger Antunez, Maria Nicolasa Date  Subject Hours Timekeeper 3/24/2016 Review decisions and evidence to determine whether to appeal case 1 Van Auken, Alyssa 4/15/2016 Draft Complaint, Proposed Summons, Letter to Clerk, and Civil Cover Sheet 0.6 Olinsky, Howard D. 4/15/2016 Review Motion to Proceed In Forma Pauperis, approve for filing 0.2 Olinsky, Howard D. 4/18/2016 Review Case assigned Hon. G. Murray Snow, research individual rules & practices 0.3 Olinsky, Howard D. 4/18/2016 Draft application for Pro Hac Vice admission 0 Olinsky, Howard D. 4/18/2016 Review Order granting In Forma Pauperis application, directing service 0.1 Olinsky, Howard D. 4/18/2016 Review Scheduling order, calender deadlines on task pad 0.3 Olinsky, Howard D. 4/18/2016 Review Summons Issued 0.2 Olinsky, Howard D. 4/22/2016 Review Order granting Motion for Pro Hac Vice 0 Olinsky, Howard D. 5/12/2016 Review service executed, confirm scheduling order calendared 0.2 Eaglin, Paul B. 5/26/2016 Review Notice of appearance Sarah Moum o/b/o Carolyn Colvin 0.1 Eaglin, Paul B. 7/1/2016 Review Answer to complaint 0.1 Eaglin, Paul B. 7/5/2016 Preliminary review of transcript-assign Attorney writer 0.5 Eaglin, Paul B. 8/25/2016 Review Certified Administrative Record and take notes (636 pages) 4.2 Wicklund, Edward A. 8/26/2016 Drafting procedural section, drafting facts 4.3 Wicklund, Edward A. 8/29/2016 Research issues and drafting argument 2 Wicklund, Edward A. 8/30/2016 Continue researching issues and drafting arguments 8 Wicklund, Edward A. 8/30/2016 Senior Attorney review draft brief, suggest edits 0.9 Eaglin, Paul B. 8/30/2016 Implement suggested edits, finalize and file brief (n/c for filing) 0.7 Wicklund, Edward A. 9/26/2016 Emails with Opposing Counsel re: Defendant first extension request 0.2 Olinsky, Howard D. 9/27/2016 Review first motion for extension request by Defendant 0.1 Eaglin, Paul B. 9/27/2016 Review Declaration of Sarah Moum re: extension of time to file brief 0.1 Eaglin, Paul B. 9/27/2016 Review Order granting Defendant extension, update task pad 0.2 Eaglin, Paul B. 10/31/2016 Review response brief (12 pages) 0.4 Eaglin, Paul B. 10/31/2016 Assign Attorney writer to access/write reply brief 0.2 Eaglin, Paul B. 11/15/2016 Review Briefing in preparation for possible reply-research, draft reply 2.3 Wicklund, Edward A. 11/15/2016 Senior Attorney review draft reply brief, suggest edits 0.3 Eaglin, Paul B. 11/15/2016 Implement suggested edits, finalize and file reply brief (n/c for filing) 0.4 Wicklund, Edward A. 2/22/2017 Review Minute order re: Case reassigned Judge James A. Teilborg, updated case # 0.2 Eaglin, Paul B. 5/2/2017 Review Order reversed and remanded for further proceedings (4 pgs) 0.2 Wicklund, Edward A. 5/2/2017 Review Clerk's Judgment 0.1 Wicklund, Edward A. 7/25/2017 Review Slips and Finalize EAJA Motion 0.5 Olinsky, Howard D. 28.90 (Type = Time) and (Category = Federal Court) and ((Timekeeper = Eaglin, Paul B.) or (Timekeeper = Olinsky, Howard D.) or (Tim...   

Exhibit C - Paralegal Time

Exhibit C Case 2:16-cv-01072-JAT Document 23-4 Filed 08/02/17 Page 2 of 3 Ledger Antunez, Maria Nicolasa Date  Subject Hours Timekeeper 2/22/2016 Files received, reviewed and processed from referral source for Attorney review 0.6 Callahan, Michelle 2/22/2016 Correspondence to Client re: Prospect acknowledgment letter mailed 0.2 Callahan, Michelle 2/25/2016 Telephone call with Client re: Debt conference call, explained process 0.4 Callahan, Michelle 3/31/2016 FDC prospect packet prepared for Client completion 0.5 Callahan, Michelle 3/31/2016 Telephone call to Client re: Acceptance of case and review forms-Left VM 0 Callahan, Michelle 4/5/2016 Telephone call to Client re: Acceptance of case and review forms-Left VM 0 Callahan, Michelle 4/8/2016 Telephone call with Client re: Assistance with in forma pauperis application 0.5 Callahan, Michelle 4/8/2016 FDC prospect packet sent to Client via Right Signature 0.2 Callahan, Michelle 4/13/2016 FDC Prospect packet returned via Right Signature, reviewed for completion 0.3 Smith, Michael P. 4/15/2016 File initial case documents via cm/ecf 0 Smith, Michael P. 4/18/2016 Federal Court-Accept Letter-New FDC Filing 0.3 Smith, Michael P. 4/18/2016 Download, file, save and distribute ECF re: Complaint, Civil Cover Sheet 0 Callahan, Michelle 4/18/2016 Download, file, save and distribute ECF re: Application to Proceed IFP 0 Callahan, Michelle 4/18/2016 Download, file, save and distribute ECF re: Summons submitted 0 Callahan, Michelle 4/18/2016 Dwld, file, save & distribute ECF re: Case assigned to Honorable G. Murray Snow 0 Callahan, Michelle 4/18/2016 Download, file, save and distribute ECF re: Motion for admission Pro Hac Vice 0 Callahan, Michelle 4/18/2016 Download, file, save and distribute ECF re: Order granting IFP application 0 Callahan, Michelle 4/18/2016 Download, file, save and distribute ECF re: Scheduling order 0 Callahan, Michelle 4/18/2016 Download, file, save and distribute ECF re: Summons issued as to OCG, USAO, AG 0 Callahan, Michelle 4/22/2016 Download, file, save and distribute ECF re: Pro Hac Vice fee paid 0 Callahan, Michelle 4/22/2016 Download, file, save and distribute ECF re: Order granting Pro Hac Vice 0 Callahan, Michelle 4/27/2016 Federal Court-Service of Process-prepare service packets USAO, OGC, AG 0.6 Callahan, Michelle 5/4/2016 Download, file, and save electronic return receipts USAO, OGC, AG 0 Callahan, Michelle 5/11/2016 Combine and file proof of service via CM/ECF 0.3 Callahan, Michelle 5/12/2016 Download, file, save and distribute ECF re: Service executed 0 Callahan, Michelle 5/25/2016 Dwld, file, save & distribute ECF re: Notice of appearance Sarah Moum 0 Callahan, Michelle 7/1/2016 Download, file, save and distribute ECF re: Answer to Complaint 0 Lockwood, Tamica 7/1/2016 Download, file and save FDC transcript in 10 (ten) parts 0.2 Lockwood, Tamica 7/1/2016 Combine, strip PDF/A, OCR and live bookmark federal court transcript (636 pgs) 0.6 Lockwood, Tamica 8/31/2016 Correspondence to Client re: Federal Court-FYI Memo of Law Mailed 0 Gifford, Kyrsten 8/31/2016 Download, file, save and distribute ECF re: Opening brief 0 Lockwood, Tamica 9/27/2016 Download, file, save and distribute ECF re: First motion for extension 0 Lockwood, Tamica 9/27/2016 Download, file, save and distribute ECF re: Declaration of Sarah Moum 0 Lockwood, Tamica 9/27/2016 Download, file, save and distribute ECF re: Order granting Defendant extension 0 Lockwood, Tamica 10/31/2016 Download, file, save and distribute ECF re: Response brief 0 Lockwood, Tamica 11/16/2016 Download, file, save and distribute ECF re: Reply brief 0 Lockwood, Tamica 2/22/2017 Download, file, save and distribute ECF re: Minute order reassigned Judge JAT 0 Lockwood, Tamica 5/2/2017 Download, file, save and distribute ECF re: Order reversed and remanded 0 Lockwood, Tamica 5/2/2017 Download, file, save and distribute ECF re: Clerk's Judgment 0 Lockwood, Tamica 5/8/2017 Correspondence to Client re: FDC Remand 0.2 Callahan, Michelle 7.60 (Type = Time) and (Category = Federal Court) and ((Timekeeper = Callahan, Michelle) or (Timekeeper = Gifford, Kyrsten) or (Tim...    Case 2:16-cv-01072-JAT Document 23-4 Filed 08/02/17 Page 3 of 3 Date  Subject Hours Timekeeper 5/8/2017 Federal Court-Remand Referral back to Referral Source 0.3 Callahan, Michelle 7/18/2017 EAJA Preparation 1.5 Persse, Shannon 7/26/2017 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Persse, Shannon 7.60 (Type = Time) and (Category = Federal Court) and ((Timekeeper = Callahan, Michelle) or (Timekeeper = Gifford, Kyrsten) or (Tim...   

Exhibit D - Expenses

Exhibit D Case 2:16-cv-01072-JAT Document 23-5 Filed 08/02/17 Page 2 of 2 Ledger Antunez, Maria Nicolasa Date  Subject Amount Timekeeper 4/27/2016 Certified Mail Expense Summons and Complaint packets to Defendants $16.62 Callahan, Michelle $16.62 (Category = FC Expense-) and (Type = Cost)   

Exhibit E - Affirmation and Waiver of Direct Payment

Exhibit E Case 2:16-cv-01072-JAT Document 23-6 Filed 08/02/17 Page 2 of 2 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA (TUCSON DIVISION)--------------------------------------------------------------MS. MARIA ANTUNEZ, AFFIRMATION AND WAIVER OF DIRECT PAYMENT Plaintiff, OF EAJA FEES v. Civil Action No.: _________________ CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.---------------------------------------------------------------Ms. Maria Antunez, hereby states the following: 1. I am the Plaintiff in the above-captioned matter. 2. That I have retained Olinsky Law Group as my attorney for the above-captioned matter. 3. At the time that this action was begun, my net worth was less than $2,000,000.00. 4. If my case is remanded by the Federal Court, either by stipulation or order, my attorney may file for attorney’s fees pursuant to the Equal Access to Justice Act (EAJA). I understand that the EAJA fees are paid by the Federal Government and do not come from any back benefits owed to me by the Social Security Administration. 5. I hereby agree to waive direct payment of the EAJA fees and assign said fees to be paid directly to my attorney. 6. I understand that my attorney may still petition the Administration for legal fees for his or her work before the Administration that will be paid from my back benefits. As the Plaintiff in this case, I hereby declare and affirm under penalty of perjury that the information above is true and correct. Executed on April 8, 2016. __________________________ Ms. Maria Antunez Plaintiff

Memorandum in Support

Case 2:16-cv-01072-JAT Document 23-7 Filed 08/02/17 Page 1 of 4 1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Maria Antunez 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Maria Antunez, 13 14 Plaintiff, Civil No. 2-16-cv-01072-PHX-JAT 15 16 vs. MEMORANDUM IN SUPPORT OF 17 PLAINTIFF’S PETITION FOR 18 Commissioner of Social Security, COUNSEL FEES ALLOWANCE UNDER EQUAL ACCESS TO 19 Defendant JUSTICE ACT, 28 U.S.C. § 2412 20 21 Memorandum In Support of Plaintiff’s Petition for Counsel Fees 22 Allowance Under Equal Access to Justice Act 23 1. This is a memorandum in support of a petition for an award of 24 25 Counsel Fees under the Equal Access to Justice Act 28 USCS § 2412 "EAJA." 26 27 28 Page 8 Case 2:16-cv-01072-JAT Document 23-7 Filed 08/02/17 Page 2 of 4 1 2. An EAJA award is available to a "prevailing party" in a case against 2 the Federal Government, including Social Security cases, in the following 3 4 instances: 5 (a) When and if the plaintiff actually "prevails"; 6 (b) The Government’s position in litigation is "not substantially 7 8 justified"; 9 (c) Plaintiff is a party whose net assets are worth less than two 10 million dollars; and 11 (d) The case has concluded with a "final order" which is non-12 13 appealable, or will not be appealed. 14 3. Addressing these elements in reverse order, it is clear that the 15 Plaintiff has met the burden necessary to receive EAJA fees. 16 17 (a) Plaintiff’s net worth did not exceed $2,000,000.00 when this 18 action was filed. 19 (b) After service of the summons and complaint, and filing of 20 21 Briefs by both parties, the Court issued a Decision and Order remanding to the 22 Commissioner for further administrative proceedings under sentence four of 42 23 U.S.C. § 405(g). 24 25 (c) Judgment was entered on May 2, 2017. The Judgment has not 26 been appealed. 27 (d) Plaintiff has prevailed because the District Court remanded 28 Page 9 Case 2:16-cv-01072-JAT Document 23-7 Filed 08/02/17 Page 3 of 4 1 the case under sentence four of 42 U.S.C. § 405(g). Shalala v. Schaefer, 509 U.S. 2 292 (U.S. 1993). 3 4 4. The commissioner was not substantially justified. As the U. S. 5 6 Supreme Court has held, "the required'not substantially justified’ allegation 7 imposes no proof burden on the fee applicant. It is, as its text conveys, nothing 8 more than an allegation or pleading requirement. The burden of establishing'that 9 the position of the United States was substantially justified’ … must be shouldered 10 11 by the Government." Scarborough v. Principi, 541 U. S. 401, 414 (2004). While 12 the fee applicant such as Plaintiff is required to "show" three of the four 13 elements—prevailing party status, financial eligibility, and amount sought— 14 15 Plaintiff need only "to allege" that the position of the government is not 16 substantially justified. Id. 17 WHEREFORE, because all four elements of an allowable application for 18 19 EAJA fees have been proven, petitioner requests that the Court issue an order: 20 21 1. Awarding an Equal Access to Justice Act Counsel Fee for $6,328.45; and 22 23 2. Awarding Expenses in the amount of $16.62; and 24 3. If the Plaintiff has no debt registered with the Department of Treasury 25 subject to offset that the fees be made payable to the attorney. 26 27 28 Page 10 Case 2:16-cv-01072-JAT Document 23-7 Filed 08/02/17 Page 4 of 4 1 Executed this July 26, 2017 2 3 Respectfully submitted, 4/s/Howard D. Olinsky 5 Howard D. Olinsky, Esq. 6 Admitted Pro Hac Vice Attorney for Plaintiff 7 Email: fedct@windisability.com 8 To: John S. Leonardo 9 United States Attorney 10 Sarah Moum, Esq. 11 Special Assistant U.S. Attorney 12 Office of the General Counsel Social Security Administration 13 701 Fifth Avenue, Suite 2900 M/S 221A 14 Seattle, WA 98104 15 State Bar No. WA42086 Telephone: (206) 615-2936 16 Facsimile: (206) 615-2531 17 Email: sarah.moum@ssa.gov 18 Attorneys for Defendant 19 20 21 22 23 24 25 26 27 28 Page 11

Proposed Order

Case 2:16-cv-01072-JAT Document 23-8 Filed 08/02/17 Page 1 of 3 1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 10 11 12 Maria Antunez, Civil No. 2-16-cv-01072-PHX-JAT 13 Plaintiff, 14 15 vs. (PROPOSED) ORDER AWARDING ATTORNEY’S FEES 16 PURSUANT TO THE EQUAL 17 Commissioner of Social Security, ACCESS TO JUSTICE ACT, 18 28 U.S.C. § 2412(D) Defendant 19 20 (Proposed) Order Awarding Attorney’s Fees 21 pursuant to the Equal Access to Justice Act, 22 23 28 U.S.C. § 2412(d) 24 Before the Court is the Motion of Plaintiff Maria Antunez, for award of 25 attorney’s fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). 26 Based on the pleadings as well as the position of the defendant commissioner, if 27 28 Page 1 Case 2:16-cv-01072-JAT Document 23-8 Filed 08/02/17 Page 2 of 3 1 any, and recognizing the Plaintiff’s waiver of direct payment and assignment of 2 EAJA to her counsel, 3 4 5 IT IS HEREBY ORDERED that attorney fees in the total amount of Six 6 Thousand Three Hundred Twenty-Eight Dollars and Forty-Five Cents ($6,328.45) 7 8 pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) are awarded to 9 Plaintiff. Astrue v. Ratliff, 130 S.Ct. 2521 (2010). 10 11 IT IS FURTHER ORDERD that Plaintiff is awarded Sixteen Dollars and 12 13 Sixty-Two Cents ($16.62) in expenses for Certified Mail for service of Summons 14 and Complaint. 15 16 17 If the U.S. Department of the Treasury determines that Plaintiff’s EAJA 18 fees are not subject to offset allowed under the Department of the Treasury’s 19 Offset Program (TOPS), then the check for EAJA fees shall be made payable to 20 21 Plaintiff’s attorney, Howard D. Olinsky. 22 23 Whether the check is made payable to Plaintiff or to Howard D. Olinsky, 24 25 26 27 28 Page 2 Case 2:16-cv-01072-JAT Document 23-8 Filed 08/02/17 Page 3 of 3 1 the check shall be mailed to Howard D. Olinsky at the following address: 2 300 South State Street 3 Suite 420 4 Syracuse, NY 13202 5 6 DATED: 7 8 9 ____________________________ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 3

Certificate of Service

Case 2:16-cv-01072-JAT Document 23-9 Filed 08/02/17 Page 1 of 2 1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Maria Antunez 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Maria Antunez, 13 14 Plaintiff, Civil No. 2-16-cv-01072-PHX-JAT 15 vs. CERTIFICATE OF SERVICE 16 17 18 Commissioner of Social Security, 19 Defendant 20 21 Certificate of Service 22 23 I certify that I have electronically moved for EAJA fees with the Clerk of 24 the District Court using the CM/ECF system, which sent notification of such filing 25 to: 26 27 28 To: John S. Leonardo Page 14 Case 2:16-cv-01072-JAT Document 23-9 Filed 08/02/17 Page 2 of 2 1 United States Attorney 2 Sarah Moum, Esq. 3 Special Assistant U.S. Attorney 4 Office of the General Counsel 5 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 6 Seattle, WA 98104 7 State Bar No. WA42086 8 Telephone: (206) 615-2936 Facsimile: (206) 615-2531 9 Email: sarah.moum@ssa.gov 10 Attorneys for Defendant 11 12 August 2, 2017 13/s/Howard D. Olinsky 14 Howard D. Olinsky, Esq. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 15

RESPONSE to Motion re: [23] MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 filed by Commissioner of Social Security Administration.

Case 2:16-cv-01072-JAT Document 24 Filed 08/16/17 Page 1 of 2 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Sarah Moum 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA 42086 8 Fax: (206) 615-2531 sarah.moum@ssa.gov 9 Telephone: (206) 615-2936 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Maria Antunez, No. CV-16-01072-PHX-JAT 14 15 Plaintiff, 16 DEFENDANT’S RESPONSE TO vs. PLAINTIFF’S MOTION FOR 17 ATTORNEY FEES Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 Defendant Acting Commissioner of Social Security files this response to Plaintiff’s 22 request for an award of attorney’s fees pursuant to 28 U.S.C. § 2412, as set forth in 23 Plaintiff’s Motion (ECF No. 23). Defendant has given substantive consideration to the 24 25 merits of Plaintiff’s request and finds no basis for objection. Therefore, Defendant defer 26 to the Court’s assessment of the matter. 27 28 Case 2:16-cv-01072-JAT Document 24 Filed 08/16/17 Page 2 of 2 1 DATED this 16th day of August 2017. 2 Respectfully submitted, 3 ELIZABETH A. STRANGE 4 Acting United States Attorney 5 District of Arizona 6 s/Sarah Moum SARAH MOUM 7 Special Assistant United States Attorney 8 Of Counsel for the Defendant: 9 10 MATHEW W. PILE Acting Regional Chief Counsel, Social Security Administration 11 Office of the General Counsel, Region X 12 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 13 14 15 16 CERTIFICATE OF SERVICE 17 I hereby certify that the foregoing Defendant’s Response to Plaintiff’s 18 19 Motion for Attorney Fees was filed with the Clerk of the Court on August 16, 2017, 20 using the CM/ECF system, which will send notification of such filing to the 21 following: Howard Olinsky. 22 23 s/Megan Moore 24 MEGAN MOORE 25 Paralegal Specialist Office of the General Counsel 26 27 28 2

ORDER: IT IS ORDERED that Plaintiff's Motion for an Award of Attorneys' Fees under the EAJA, (Doc. [23]), is GRANTED to the extent it seeks $6,345.07 in attorneys' fees and costs pursuant to the EAJA. The Motion is DENIED to the extent it requests that the fees be made payable directly to Plaintiff's counsel [see attached Order for details]. Signed by Senior Judge James A Teilborg on 9/13/17.

Case 2:16-cv-01072-JAT Document 25 Filed 09/13/17 Page 1 of 5 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Maria Antunez, No. CV-16-01072-PHX-JAT 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Plaintiff Maria Antunez’s Motion for Attorneys’ Fees 16 pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, (the "Motion," 17 Doc. 23). Defendant Acting Commissioner of the Social Security Administration (the 18 "Commissioner") has filed her Response, (Doc. 24). The Court now rules on the Motion. 19 I. BACKGROUND 20 Plaintiff applied for Social Security disability benefits in October 2012. (Tr. 10).1 21 Plaintiff’s applications were denied initially on March 20, 2013 and upon reconsideration 22 on August 26, 2013. (Tr. 10). After a hearing held on July 30, 2014, (Tr. 23–43), the 23 Administrative Law Judge (the "ALJ") denied Plaintiff’s applications. (Tr. 17). 24 On April 15, 2016, Plaintiff commenced suit pursuant to 42 U.S.C. §§ 405(g) and 25 1383(c)(3) seeking a review of the ALJ’s denial of her applications for disability 26 insurance benefits and supplemental security income. (Doc. 1 at 1). This Court held that 27 28 1 Citations to "Tr." are to the certified administrative transcript of record. (Doc. 13). Case 2:16-cv-01072-JAT Document 25 Filed 09/13/17 Page 2 of 5 1 the ALJ committed harmful error by concluding that Plaintiff could perform past work. 2 (Doc. 21 at 2). As a result, this Court reversed and remanded the ALJ’s decision for "a 3 new administrative hearing, additional vocational expert testimony, and a new ALJ 4 decision" addressing the ALJ’s errors related to Plaintiff’s past work. (Id. at 3–4). This 5 Court did not reach a decision on Plaintiff’s two additional claims of error. (Id. at 3). 6 After the reversal, Plaintiff filed the current Motion requesting $6,345.07 in 7 attorneys’ fees and costs under the EAJA. (Doc. 23). The Commissioner’s Response 8 states that she "finds no basis for objection" and "defer[s] to the Court’s assessment of 9 the matter." (Doc. 24 at 1). 10 II. LEGAL STANDARD 11 The EAJA allows "a prevailing party other than the United States fees and other 12 expenses... incurred by that party in any civil action... unless the court finds that the 13 position of the United States was substantially justified or that special circumstances 14 make an award unjust." 28 U.S.C. § 2412(d)(1)(A) (2012). An applicant for disability 15 benefits becomes a prevailing party for the purposes of the EAJA if the denial of her 16 benefits is reversed and remanded regardless of whether disability benefits are ultimately 17 awarded. Shalala v. Schaefer, 509 U.S. 292, 300–02 (1993). 18 The "position of the United States" includes both its litigating position and the 19 "action or failure to act by the agency upon which the civil action is based." 20 28 U.S.C. § 2412(d)(2)(D). To be substantially justified, a position must be "justified in 21 substance or in the main–that is, justified to a degree that could satisfy a reasonable 22 person." Pierce v. Underwood, 487 U.S. 552, 565 (1988) (holding that "substantially 23 justified" means having a reasonable basis both in law and fact). In EAJA actions, the 24 government bears the burden of proving that its position was substantially justified. 25 Gonzales v. Free Speech Coalition, 408 F.3d 613, 618 (9th Cir. 2005). 26 When analyzing the government’s position for substantial justification, the Court’s 27 inquiry should be focused on the issue that was the basis for remand and not the merits of 28 Plaintiff’s claim in its entirety or the ultimate disability determination. Flores v. Shalala,-2-Case 2:16-cv-01072-JAT Document 25 Filed 09/13/17 Page 3 of 5 1 49 F.3d 562, 569 (9th Cir. 2008); see also Corbin v. Apfel, 149 F.3d 1051, 1052 2 (9th Cir. 1998) ("The government’s position must be substantially justified at each stage 3 of the proceedings." (citation and quotation marks omitted)). 4 III. ANALYSIS 5 Plaintiff requests attorneys’ and paralegals’ fees of $6,328.45, and costs of $16.62. 6 (Doc. 23 at 2). Plaintiff also asks that "fees be made payable to the attorney." (Id.). The 7 Commissioner does not oppose Plaintiff’s Motion. (Doc. 24). 8 The Court could "treat the government’s non-opposition as constituting a failure to 9 offer a basis for finding of substantial justification and, thus, a failure to carry its burden 10 of proof." Gwaduri v. INS, 362 F.3d 1144, 1146 (9th Cir. 2004). However, the Court 11 should exercise discretion in awarding fees under EAJA and "has an independent 12 obligation to ensure that the request is reasonable." Keyser v. Astrue, No. 08-1268-CL, 13 2012 WL 78461, at *3 (D. Or. Jan. 10, 2012); see also Webb v. Ada Cty., 14 195 F.3d 524, 527 (9th Cir. 1999) (recognizing that a district court possesses 15 "considerable discretion" in determining the reasonableness of a fee award). Accordingly, 16 the Court reviews both the reasonableness of Plaintiff’s request and whether Plaintiff’s 17 counsel should receive the costs and fees directly. 18 A. Attorneys’ Fees & Costs 19 Plaintiff claims that an EAJA award is available as: (1) Plaintiff’s net worth did 20 not exceed $2,000,000 at the time the action was filed; (2) Plaintiff was a "prevailing 21 party" in a case against the U.S. Government; and (3) the position of the United States 22 was not substantially justified. (Doc. 23 at 2). Because the Commissioner does not argue 23 that her position was substantially justified, the Court concludes that Plaintiff is entitled 24 to all reasonable attorneys’ fees and need only analyze whether Plaintiff’s requested 25 attorneys’ fees are reasonable. See Cudia v. Astrue, No. 2:08-cv-01676 KJN, 26 2011 WL 6780907, at *8 (E.D. Cal. Dec. 27, 2011). 27 Plaintiff requests $5,568.45 for 28.9 hours of attorney work, $760.00 for 7.6 hours 28 of paralegal work, and $16.62 in costs, for a total award of $6,345.07. (See Doc. 23-1-3-Case 2:16-cv-01072-JAT Document 25 Filed 09/13/17 Page 4 of 5 1 at 2–3). Courts within the Ninth Circuit have "recognize[d] a range of 20–40 hours to be 2'a reasonable amount of time to spend on a social security disability case that does not 3 present particular difficulty.’" Syas v. Astrue, No. 03:10-cv-06391-HU, 4 2012 WL 3144041, at *2 (D. Or. June 15, 2012) (quoting Harden v. Comm’r Soc. Sec. 5 Admin., 497 F. Supp. 2d 1214, 1215–16 (D. Or. 2007)). Here, Plaintiff’s requested hours 6 fall within the spectrum of reasonableness. Further, the Court’s review of the attorneys’ 7 ledger reveals that Plaintiff’s counsel did not spend an unreasonable amount of time on 8 any particular task while preparing Plaintiff’s case. (See Doc. 23-2). Accordingly, the 9 Court awards attorneys’ fees and costs in the amount of $6,345.07. 10 B. To Whom Is Award Paid 11 Plaintiff also motions for this Court to award attorneys’ fees and costs totaling 12 $6,345.07 directly to Plaintiff’s counsel under 28 U.S.C. § 2412. (See Doc. 23 at 2). The 13 record includes an affidavit from Plaintiff asserting that she "hereby agree[s] to waive 14 direct payment of the EAJA fees and assign said fees to be paid directly to my attorney." 15 (Doc. 23-6 at 2). 16 "The fact that the [EAJA] awards to the prevailing party fees in which her attorney 17 may have a beneficial interest or a contractual right does not," however, "establish that 18 the statute'awards’ the fees directly to the attorney." Astrue v. Ratliff, 560 U.S. 586, 593 19 (2010). Instead, the EAJA "‘awards’ the fees to the litigant, and thus subjects them to a 20 federal administrative offset if the litigant has outstanding federal debts." Id. Here, 21 Plaintiff agreed to assign all rights to any EAJA fee award to her counsel. (Doc. 23-6 22 at 2). 23 Nonetheless, the Anti-Assignment Act ("the Act") forbids the assignment of 24 claims against the United States unless certain requirements are satisfied. 25 31 U.S.C. § 3727 (2012). Namely, an assignment is permitted only: (1) "after a claim is 26 allowed"; (2) when "the amount of the claim is decided"; and (3) when "a warrant for 27 payment of the claim has been issued." Id. § 3727(b). In this case, Plaintiff’s assignment 28 was executed on April 8, 2016, well before any EAJA claim was allowed or the amount-4-Case 2:16-cv-01072-JAT Document 25 Filed 09/13/17 Page 5 of 5 1 decided. (Doc. 23-6 at 2). Because the assignment does not meet the Act’s requirements, 2 the Court concludes that the assignment is invalid as contrary to the Act. In any event, the 3 determination of whether to pay Plaintiff’s counsel directly "must be made by the 4 Commissioner after confirming that Plaintiff has assigned her right to fees and does not 5 owe a debt that is subject to offset under the Treasury Offset Program." Zamora v. 6 Colvin, No. CV-13-01970-PHX-DGC, 2014 WL 4388537, at *2 (D. Ariz. Sept. 5, 2014) 7 (emphasis added) (citing Ratliff, 560 U.S. at 594). Consequently, the Court will deny 8 Plaintiff’s request for the EAJA fees to be made payable directly to her counsel. 9 IV. CONCLUSION 10 Based on the foregoing, 11 IT IS ORDERED that Plaintiff’s Motion for an Award of Attorneys’ Fees under 12 the EAJA, (Doc. 23), is GRANTED to the extent it seeks $6,345.07 in attorneys’ fees 13 and costs pursuant to the EAJA. The Motion is DENIED to the extent it requests that the 14 fees be made payable directly to Plaintiff’s counsel. 15 IT IS FURTHER ORDERED that this award shall be payable directly to 16 Plaintiff and is subject to offset to satisfy any pre-existing debt that Plaintiff owes the 17 United States pursuant to Ratliff, 560 U.S. 586. 18 Dated this 13th day of September, 2017. 19 20 21 22 23 24 25 26 27 28-5-

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Description
1
04/15/2016
COMPLAINT filed by Maria Antunez.
1
Civil Cover Sheet
2
https://ecf.azd.uscourts.gov/doc1/025115745706" onClick="goDLS{{'/doc1/025115745706','976394','6','','2','1','',''}};">2</a> Letter)(submitted by Howard D. Olinsky)
2 Attachments
2
04/15/2016
APPLICATION for Leave to Proceed In Forma Pauperis by Maria Antunez. (submitted by Howard Olinsky)
3
04/15/2016
SUMMONS Submitted by Maria Antunez.
1
Summons
2
https://ecf.azd.uscourts.gov/doc1/025115745760" onClick="goDLS{{'/doc1/025115745760','976394','10','','2','1','',''}};">2</a> Summons) (submitted by Howard Olinsky)
2 Attachments
4
04/15/2016
This case has been assigned to the Honorable G Murray Snow. All future pleadings or documents should bear the correct case number: CV-16-01072-PHX-GMS. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached.
5
04/18/2016
MOTION for Admission Pro Hac Vice as to attorney Howard D. Olinsky by Maria Antunez.
1
Letter to Clerk
1 Attachment
6
04/18/2016
ORDER granting the application for leave to proceed in forma pauperis, without prepayment of costs or fees or the necessity of giving security therefore. Plaintiff shall be responsible for service by waiver or of the summons and complaint. Signed by Judge G Murray Snow on 4/18/2016.
7
04/18/2016
SOCIAL SECURITY SCHEDULING ORDER. Signed by Judge G Murray Snow on 4/18/2016. (See Order for complete details.)
8
04/18/2016
Summons Issued as to Carolyn W Colvin, U.S. Attorney and U.S. Attorney General.
1
Summons
2
https://ecf.azd.uscourts.gov/doc1/025115748094" onClick="goDLS{{'/doc1/025115748094','976394','22','','2','1','',''}};">2</a> Summons)
2 Attachments
04/22/2016
PRO HAC VICE FEE PAID. $ 35, receipt number PHX171041 as to Howard D Olinsky. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
9
04/22/2016
ORDER pursuant to General Order 09-08 granting 5 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
10
05/11/2016
*SERVICE EXECUTED filed by Maria Antunez: Return of Service re: Summons, Complaint and Scheduling Order upon US Attorney's Office on 4/30/2016, Office of General Counsel on 5/2/2016, and Attorney General on 5/2/2016. *Modified text on 5/12/2016
11
05/25/2016
NOTICE OF ATTORNEY APPEARANCE: Sarah Moum appearing for Carolyn W Colvin.
12
07/01/2016
ANSWER to 1 Complaint by Carolyn W Colvin.
13
07/01/2016
NOTICE of Filing Certified Copy of Administrative Transcript re: 12 Answer to Complaint filed by Carolyn W Colvin.
1
Certification Page
2
Court Transcript Index
3
Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable
4
Payment Documents and Decisions
5
Jurisdictional Documents and Notices
6
Non Disability Related Development
7
Disability Related Development
8
Medical Records Part 1
9
Medical Records Part 2
9 Attachments
14
08/30/2016
OPENING BRIEF by Maria Antunez Social Security.
15
09/27/2016
First MOTION for Extension of Time Defendant's Brief Unopposed by Carolyn W Colvin.
1
Text of Proposed Order
1 Attachment
16
09/27/2016
DECLARATION of Sarah Moum re: 15 First MOTION for Extension of Time Defendant's Brief Unopposed by Defendant Carolyn W Colvin.
17
09/27/2016
ORDER granting 15 Motion for Extension of Time. The answering brief shall be due on or before 10/31/2016. Signed by Judge G Murray Snow on 9/27/2016.
18
10/31/2016
RESPONSE BRIEF by Carolyn W Colvin.
19
11/15/2016
REPLY BRIEF by Maria Antunez.
20
02/22/2017
MINUTE ORDER: This case is reassigned to Senior Judge James A Teilborg. All future filings shall reflect the following case number: CV-16-1072-PHX-JAT. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
21
05/02/2017
ORDER - The decision of the Commissioner is reversed and remanded for further proceedings consistent with this decision and the Clerk shall enter judgment accordingly. Signed by Senior Judge James A Teilborg on 05/01/2017.
22
05/02/2017
CLERK'S JUDGMENT - IT IS ORDERED AND ADJUDGED that pursuant to the Court's Order filed May 2, 2017, the decision of the Commissioner is reversed, and this case is remanded to the Social Security Administration for further proceedings consistent with the Order.
23
08/02/2017
MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Maria Antunez.
1
Affirmation in Support of Motion
2
Exhibit A - Total Professional Time
3
Exhibit B - Attorney Time
4
Exhibit C - Paralegal Time
5
Exhibit D - Expenses
6
Exhibit E - Affirmation and Waiver of Direct Payment
7
Memorandum in Support
8
Proposed Order
9
Certificate of Service
9 Attachments
24
08/16/2017
RESPONSE to Motion re: [23] MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 filed by Commissioner of Social Security Administration.
25
09/13/2017
ORDER: IT IS ORDERED that Plaintiff's Motion for an Award of Attorneys' Fees under the EAJA, (Doc. [23]), is GRANTED to the extent it seeks $6,345.07 in attorneys' fees and costs pursuant to the EAJA. The Motion is DENIED to the extent it requests that the fees be made payable directly to Plaintiff's counsel [see attached Order for details]. Signed by Senior Judge James A Teilborg on 9/13/17.
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