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Calderon v. Astrue

October 21, 2010

GILBERTO CALDERON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S PETITION FOR ATTORNEY FEES AND EXPENSES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT

(DOCUMENT 27)

BACKGROUND

This matter is before the Court on a petition for prevailing party fees and costs under the Equal Access to Justice Act ("EAJA"), Title 28 of the United States Code section 2412(d), filed by Plaintiff on March 19, 2010.

FACTS AND PRIOR PROCEEDINGS

On January 15, 2008, Administrative Law Judge ("ALJ") Edward D. Steinman issued his disability determination which, in pertinent part, found that Gilberto Calderon ("Plaintiff") was literate based on the requirements of Title 20 of the Code of Federal Regulation section 404.1564, and that the Plaintiff was not credible. (AR 18-20.) On July 6, 2008, Plaintiff requested review of ALJ Steinman's decision, and subsequently, the Commissioner ("Defendant") defended both those findings as proper. (Docs. 1 & 19 at 10-16.) More specifically, the Defendant argued three distinct grounds supported the ALJ's literacy finding: 1) the ALJ was not required to rely on the Grids in light of testimony from the vocational expert ("VE"); 2) even if the ALJ was required to apply on the Grids, the Grid identified by Plaintiff was inapplicable; and 3) the ALJ did make a sufficient finding that Plaintiff was literate. (Doc. 19 at 10-13.)

On November 10, 2009, this Court issued its Order Regarding Plaintiff's Social Security Complaint wherein the agency's decision was reversed and the matter remanded for further proceedings. (Doc. 21.) The basis for this Court's remand order was twofold: 1) the failure of the ALJ to properly assess and/or substantiate the Plaintiff's literacy and ability to communicate in English, pursuant to Title 20 of the Code of Federal Regulations sections 404.1564(b) and 416.964(b), and 2) as a result of this failure, the hypotheticals proposed by the ALJ to the VE were incomplete as they failed to fully incorporate all of Plaintiff's limitations. (Doc. 21 at 12-15.) However, as to the ALJ's credibility determination, the Court did find that the ALJ's actions and conclusions were supported by substantial evidence, and therefore, were appropriate. (Doc. 21 at 15-18.)

In response to this Court's Order, on November 13, 2009, the Commissioner moved to amend the judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. (Doc. 23.) Specifically, Defendant requested this Court amend its decision as it pertained to the ALJ's literacy determination, based on the argument that this Court's finding the application of the Grids unnecessary in determining Plaintiff's literacy precluded remand as moot. Id. at 2-3. On November 25, 2009, Plaintiff filed a motion in opposition. (Doc. 24.) And on December 5, 2009, Defendant filed a reply brief in response to Plaintiff's motion in opposition. (Doc. 25.)

Defendant's Rule 59(e) motion was denied January 21, 2010. (Doc. 26.) This Court held that use of the Girds cannot form the sole source upon which the ALJ relies in making a disability determination in the face of non-exertional limitations; however, neither are they are simply precluded by the presence of a non-exertional limitation. (Doc. 26 at 4-6.)

On March 19, 2010, Plaintiff filed a Petition for Attorney Fees and Expenses pursuant to the EAJA. (Doc. 27.) Plaintiff's claim for attorney's fees totals $6,986.61. (Doc. 27 at 3, 14, Exh. 2.) This total represents $6,511.16 in attorney fees for 37.8 hours at a rate of $172.85 per hour; it also identifies $475.45 in paralegal fees for 4.3 hours at a rate of $110.57 per hour. (Doc. 27 at 2-3, 14, Exh. 2.) Plaintiff argues that the Commissioner was not substantially justified in his defense of the ALJ's literacy decision, and that the award of fees should be paid to Plaintiff's counsel directly, or in the alternative, to Plaintiff as a representative payee, so as to avoid a potential offset for federally recoverable debts. (Doc. 27 at 4-14.)

The Commissioner filed an opposition to the Plaintiff's petition on April 5, 2010, arguing that Plaintiff was not entitled to fees because: 1) the Commissioner's defense of the ALJ's findings was substantially justified, pointing out that it had prevailed on the credibility issue; 2) the amount of fees claimed by Plaintiff was unreasonable, specifically citing the sparsity of the medical record evidence, excessive attorney time, and billings for clerical/administrative tasks; and 3) EAJA fees are only payable to the Plaintiff, as he is the prevailing party, not the Plaintiff's attorney. (Doc. 28 at 2-10.)

Thereafter, on May 5, 2010, Plaintiff filed a reply to the Commissioner's opposition which sought additional "fees on fees" in the amount of $1,171.23 for the 6.8 attorney hours it took to compose the reply brief, and thereby raising the total request for fees to $8,157.23. (Doc. 29 at 12.) Plaintiff argued that the Commissioner's defense of the ALJ's decision regarding Plaintiff's literacy was not substantially justified, indicating that this Court's determination made clear that the evidentiary justification relied on by the ALJ was "extremely limited" and "far from clear," and that the ALJ improperly conflated the ability to communicate as demonstrative of Plaintiff's literacy. (Doc. 29 at 3-4.)

On June 17, 2010, this Court requested the parties file supplemental briefs addressing the applicability of the Astrue v. Ratliff, 130 S.Ct. 2521 (2010). (Doc. 30.) In response, both parties filed responsive briefs ...


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