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Fortes v. Astrue

September 17, 2009

KIM FORTES, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR ATTORNEY'S FEES

Plaintiff has filed a motion for attorney's fees under the Equal Access to Justice Act. For the reasons discussed below, Plaintiff's motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

In this action, Plaintiff sought review of the denial of her applications for Disability Insurance Benefits and Supplemental Security Income under Titles II and XVI of the Social Security Act. In an order filed on March 18, 2009, the Court granted Plaintiff's motion for summary judgment and remanded for further proceedings consistent with the Court's Order. The Court remanded on the grounds that (1) the ALJ did not address Dr. Pena's opinion that Plaintiff was restricted to part-time work; and (2) the ALJ failed to ask the Vocational Expert about an apparent conflict between information provided in the Dictionary of Occupational Titles ("DOT") and the VE's testimony that Plaintiff could perform the jobs of host and cashier.

II. DISCUSSION

Under the Equal Access to Justice Act ("EAJA"), the prevailing party, other than the United States, is entitled to attorney's fees unless the government's position was substantially justified or special circumstances exist that render the award of fees unjust. 28 U.S.C. § 2412(d)(1)(A). Defendant disputes that Plaintiff is entitled to an award of attorney's fees and, in the event that the Court finds otherwise, challenges the reasonableness of the fees sought.

A. Substantial Justification

Defendant contends that the government's position was substantially justified with respect to the two issues that were the subject of the Court's remand. The Court disagrees.

"Substantially justified" means "justified in substance or in the main" -- i.e., justified "to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565 (1988). A substantially justified position must have a reasonable basis in both law and fact. Id. The government's position must be substantially justified at each stage of the proceedings. Williams v. Bowen, 966 F.2d 1259, 1261 (9th Cir. 1991).

With respect to Dr. Pena's opinion that Plaintiff was restricted to part-time work, Defendant argues that the ALJ was not required to address this evidence specifically and that the ALJ reasonably concluded, based on all of the evidence before him, that Plaintiff could perform full-time unskilled work. In Vincent on behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984), cited by Defendant, the Ninth Circuit explained that the Secretary need not discuss all evidence presented to him, but, rather, must explain why "significant probative evidence has been rejected." In Vincent, the Ninth Circuit held that the ALJ did not have to explain why he rejected a psychiatrist's report because the report was controverted by medical reports prepared by other doctors and the report was an "after-the- fact psychiatric diagnosis."

In contrast, in this case, Dr. Pena's opinion that Plaintiff was restricted to part-time work was "significant probative evidence." As pointed out by Defendant, Matthew Carroll, M.D. concluded that Plaintiff had no mental limitations. However, Dr. Carroll evaluated Plaintiff in September 2006. Dr. Pena evaluated Plaintiff in April 2007. The ALJ indicated, "the record reflects no severe mental impairment until recently." (Tr. 23.) Apparently, the ALJ believed that Plaintiff's mental condition worsened after her evaluation by Dr. Carroll and adopted Dr. Pena's conclusion that Plaintiff suffered from major depressive disorder and was limited to performing simple and repetitive tasks as a result of her mental condition. In light of the weight the ALJ placed on Dr. Pena's opinion in general (and the lack of contradictory opinions from the same time period), the ALJ was required to address the aspect of Dr. Pena's opinion concerning Plaintiff's restriction to part-time work.

As for the ALJ's failure to resolve conflicts between the occupational information provided by the DOT and the VE's testimony, it is clear that the ALJ failed to follow the law. The job of cashier (DOT 211.362-010) requires frequent reaching, handling, and fingering. The job of host (DOT 352.667-010) requires frequent reaching and handling. In addition, both jobs have a skill level above "unskilled."*fn1 Plaintiff could only perform unskilled work and was limited to occasional handling and fine fingering with her right hand.

Under SSR 00-4p, the ALJ has an affirmative duty to (1) ask the VE if the evidence he or she provided conflicts with information provided in the DOT; and (2) if the VE's evidence appears to conflict with the DOT, the ALJ must obtain a reasonable explanation for the apparent conflict. In Massachi v. Astrue, 486 F.3d 1149 (9th Cir. 2007), the Ninth Circuit held that the ALJ must perform the inquiries under SSR 00-4p before relying on a VE's testimony regarding the requirements of a particular job.

The ALJ did not ask the VE whether her testimony conflicted with any information provided in the DOT and, if so, whether there was a reasonable explanation for the conflict. The ALJ's failure to perform the appropriate inquiries under SSR 00-4p is significant because there was a conflict between the VE's testimony and the information provided in the DOT. The jobs identified by the VE required frequent ...


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