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Reed v. Astrue

February 19, 2010

MELVIN REED, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Susan E. Cox

MEMORANDUM OPINION AND ORDER

Plaintiff, Melvin Reed seeks recovery for his attorney's fees pursuant to the Equal Access to Justice Act ("EAJA").*fn1 The Commissioner of Social Security ("the Commissioner") seeks a denial of plaintiff's motion or a reduction in the amount of the award. For the reasons discussed herein, the Court grants the motion and awards an amount of attorney's fees totaling $11,225.15 [dkt 22].

PROCEDURAL HISTORY

On December 21, 2005, plaintiff filed an application for DIB claiming disability since December 8, 2004. The Social Security Administration denied plaintiff's application as well as his subsequent request for reconsideration. On September 27, 2006, plaintiff filed a request for a hearing by an Administrative Law Judge ("ALJ"). On March 27, 2008, the ALJ found plaintiff not disabled and denied his application for DIB. Next, on September 11, 2008, the Appeals Council denied plaintiff's request for review, leaving the ALJ's ruling as the final decision of the Commissioner. On October 7, 2008, plaintiff filed this action. On October 8, 2009, we granted plaintiff's motion for summary judgment and remanded the case to the ALJ for further proceedings to specifically discuss plaintiff's symptoms of leg pain and toe numbness after step four in the ALJ's analysis. After the remand, on December 14, 2009, plaintiff timely filed a motion for an award of attorney's fees [dkt 22].

BACKGROUND

The necessary facts are contained in the Court's October 8, 2009 Memorandum Opinion and Order [dkt 20], so we will only briefly restate them here. Plaintiff worked as a semi-truck driver for 32 years. Plaintiff claimed he had pain in his lower back and legs stemming from a back injury, which caused him to stop working. In plaintiff's motion for summary judgment, he presented arguments challenging the ALJ's decision on several grounds. Agreeing with one of plaintiff's arguments, the court remanded the case, finding that the ALJ improperly excluded evidence of plaintiff's treating physicians, specifically, records documenting that plaintiff had symptoms of toe numbness and leg pain. As was noted in this Court's decision, we were troubled with the lack of specificity in the ALJ's opinion regarding the implications of plaintiff's toe numbness and leg pain and his ability to return to work as a semi-truck driver.*fn2 We, therefore, remanded the case for further analysis and explanation as to the weight, if any, given to the reports regarding symptoms of leg pain and toe numbness.*fn3

ANALYSIS

Plaintiff argues that he is entitled to attorney's fees because the Commissioner was not substantially justified in relying on the ALJ's decision, principally because the ALJ erred by concluding that plaintiff could perform his past work as a truck driver without discussing how plaintiff's toe numbness and shooting leg pain would affect his ability to drive. The Commissioner argues that the ALJ did not need to discuss the impact of these symptoms because he found them to be not wholly credible. As a result, the Commissioner argues that he was substantially justified in relying on the ALJ's lack of specificity. Next, the Commissioner argues that plaintiff is not entitled to any attorney's fees or, in the alternative, that plaintiff is entitled to a reduced amount. The Commissioner, however, has not set forth with any specificity how much the fees should be reduced.

A plaintiff is eligible for a reasonable award of fees under the Equal Access to Justice Act ("EAJA") if: (1) he or she is a "prevailing party;" (2) the government's position was not "substantially justified;" (3) there are no "special circumstances" that make "an award unjust;" and (4) the fee application "is submitted to the court within 30 days of final judgment and is supported by an itemized statement."*fn4 There is no dispute that plaintiff is a prevailing party,*fn5 there are no special circumstances, and plaintiff's application was timely filed. Thus, the two issues before the court are whether: (1) the government's position was substantially justified; and (2) plaintiff's request for fees totaling $11,225.15 is reasonable. The Court will examine each of these issues in turn.

A. Substantial Justification

Plaintiff asserts that the Commissioner was not justified in his position because he relied on the ALJ's decision even though the ALJ did not determine or articulate the impact of plaintiff's symptoms of leg pain and toe numbness on plaintiff's ability to return to work. The Commissioner responds that: (1) he had a reasonable basis for defending the ALJ's decision, especially because Dr. Chavez's and Dr. Rabinowitz's testimony noted that they observed normal gait, sensation, station and standing position; and (2) plaintiff did not testify that his toe numbness and leg pain interfered with his ability to drive.

To establish that its position was substantially justified, the government must show that it "could satisfy a reasonable person."*fn6 The government's position does not necessarily have to be correct, but must have "(1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for the theory propounded; and (3) a reasonable connection between the facts alleged and the theory propounded."*fn7 If a court's opinion contains "strong language against the Commissioner's position ... it is evidence in support of an award of fees."*fn8 On the other hand, "the closeness of the question is, in itself, evidence of substantial justification."*fn9 Finally, because the reasonableness analysis involves a "global assessment" of the entire civil action, the government is not automatically justified simply because it prevails on a majority of the issues.*fn10

Here, we remanded the case based only on the ALJ's exclusion of any discussion regarding plaintiff's symptoms of leg pain and toe numbness after step four of the analysis. Because the ALJ has a duty to develop a full and fair record, we determined that there was "good cause" to remand the case to more fully assess that evidence.*fn11 As we stated in our Order, a remand was warranted because there was no indication as to whether the ALJ examined or considered the symptoms of toe numbness and leg pain when making his determination that plaintiff could return to his past work.

The Commissioner argues that the ALJ's basis for disregarding the omission was because the rest of the evidence supported a finding that plaintiff could perform his past relevant work as a semi-truck driver. Specifically, the Commissioner argues that the ALJ did not need to discuss the impact of these symptoms because he found them to be not wholly credible. However, the Commissioner's reasoning is not persuasive because "general principles of administrative law preclude Commissioner's lawyers from advancing grounds of the agency's decision that were not given by the ALJ."*fn12 Here, the ALJ did not explain the exclusion of the symptoms plaintiff noted to his doctors. Therefore, the Commissioner's reasoning was not supported. Even if the additional symptoms would have played a small role in the case, the ALJ has ...


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