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Paul A. Diaz v. Michael J. Astrue

August 2, 2011

PAUL A. DIAZ,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REGARDING PETITION FOR FEES (Document 22)

This matter is before the Court on a petition for attorneys' fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), filed on May 6, 2011, by Plaintiff Paul A. Diaz ("Plaintiff"). Defendant filed an opposition on June 6, 2011, arguing that the Government's position was substantially justified and that the fee requested is unreasonable.*fn1 Plaintiff filed a reply on July 7, 2011.

The matter is currently before the Court on the parties' briefs, which were submitted to the Honorable Dennis L. Beck, United States Magistrate Judge.*fn2

BACKGROUND

Plaintiff filed the instant Complaint challenging the denial of benefits on January 6, 2010. On April 8, 2011, the Court issued an order remanding the action for further proceedings. The remand was based on the ALJ's failure to determine whether a conflict existed between the positions identified by the Vocational Expert ("VE") and the requirements of the Dictionary of Occupational Titles ("DOT"). The Court remanded the action with instructions to (1) ensure that the RFC and hypothetical question include the same limitations; and (2) determine whether a conflict exists and whether a reasonable basis exists for reconciling the conflict.

The Court entered judgment in Plaintiff's favor on April 8, 2011.

By this motion, Plaintiff seeks a total of $9,715.83 in attorneys' fees for 55.5 hours of attorney time and $305.41 in costs.

DISCUSSION

Under the EAJA, a prevailing party will be awarded reasonable attorney fees, unless the government demonstrates that its position in the litigation was "substantially justified," or that "special circumstances make an award unjust." 28 U.S.C. § 2412 (d)(1)(A). An award of attorney fees must be reasonable. Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001). "[E]xcessive, redundant, or otherwise unnecessary" hours should be excluded from a fee award, and charges that are not properly billable to a client are not properly billable to the government. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). A court has wide latitude in determining the number of hours reasonably expended. Cunningham v. County of Los Angeles, 879 F.2d 481, 484 (9th Cir. 1988).

A. Substantial Justification

To show substantial justification for conduct, the Commissioner has the burden of establishing that the conduct had a reasonable basis both in law and fact based on the record of both the underlying government conduct at issue and the totality of circumstances present before and during litigation. Hardisty v. Astrue, 529 F.3d 1072 (9th Cir. 2010); Sampson v. Chater, 103 F.3d 918, 921 (9th Cir. 1996). The Commissioner is substantially justified if his position met "the traditional reasonableness standard-that is 'justified in substance or in the main,' or 'to a degree that could satisfy a reasonable person.'" Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002) (internal citations omitted). The Supreme Court has explained that "a position can be justified even though it is not correct, and we believe it can be substantially ... justified ... if it has a reasonable basis in law and fact." Id. (citing Pierce v. Underwood, 487 U.S. 552, 566 n. 2 (1988)). The Commissioner's position must be substantially justified "with respect to the issue on which the court based its remand." Flores v. Shalala, 49 F.3d 562, 569 (9th Cir. 1995).

In the underlying litigation, the Court based the remand on the ALJ's failure to determine whether a conflict existed between the VE's testimony and the descriptions contained in the DOT. Plaintiff argued that the three positions identified by the VE at step five exceeded his reaching abilities set forth in the hypothetical. The Court explained:

Under these circumstances, the ALJ is required to determine whether a conflict exists and, if so, "whether the vocational expert's explanation for the conflict is reasonable and whether a basis exists for relying on the expert rather than the Dictionary of Occupational Titles." Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007); see also Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995) (stating that an ALJ may rely on expert testimony which contradicts the DOT "only insofar as the record contains persuasive evidence to support the deviation").

Here, although the ALJ reminded the VE to explain how his answers diverge from the DOT prior to posing the hypothetical questions, he did not specifically ask whether any conflicts existed. Therefore, the record does not contain any explanation for the deviation in reaching requirements and the ...


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