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Martin Corona v. Michael J. Astrue

September 15, 2011

MARTIN CORONA PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the Motion for Attorney Fees (ECF No. 36) pursuant to the Equal Access to Justice Act filed by Plaintiff Martin Corona.

I. Background

In September of 2004, Plaintiff applied for disability benefits alleging that he had been disabled since February 5, 2004. On February 1, 2007, the Administrative Law Judge ("ALJ") found that Plaintiff was disabled as of May 1, 2006. On August 3, 2007, Plaintiff filed a Complaint for Review of Final Decision of the Commissioner pursuant to 42 U.S.C. § 405 (g) in this Court seeking disability benefits for the period between February 5, 2004 and May 1, 2006. (ECF No. 1).

On December 30, 2009, Plaintiff filed a Motion for Summary Judgment. (ECF No. 30). On January 29, 2010, the Commissioner of Social Security filed a Cross-Motion for Summary Judgment. (ECF No. 32).

On April 19, 2010, the Magistrate Judge issued a Report and Recommendation ("R&R") which recommends granting in part and denying in part Plaintiff's Motion for Summary Judgment and Defendant's Cross Motion for Summary Judgment and remanding the case to the ALJ for further proceedings. (ECF No. 34). The Magistrate Judge stated: "Plaintiff argues that the ALJ erred in relying on expert vocational testimony regarding what jobs Plaintiff could perform because he did not establish that the evidence was consistent with the Dictionary of Occupational Titles (hereafter "DOT")." Id. at 22. The Magistrate Judge found that for each of the jobs identified by the vocational expert: there is a conflict between the vocational expert's testimony and the evidence provided by the DOT. Further, the ALJ's decision does not comport with his own findings and evidence presented in the record.

The ALJ did not ask the vocational expert about any possible conflict between his testimony and the evidence provided by the DOT. Consequently, the ALJ did not discharge his duties pursuant to SSR 00-4p. Id. at 24-26.

The Magistrate Judge concluded:

The Court has found that most of the arguments presented in Plaintiff's Motion for Summary Judgment are unsupported by the record in this case. However, the Court has found that conflicts exist between the vocational expert's testimony and the evidence provided by the [Dictionary of Occupational Titles]. Additionally, the Court has found that evidence in the record shows that Plaintiff does not have depth perception and is unable to communicate in English. Therefore, he would be unable to perform the work of the occupations suggested by the vocational expert and found by the ALJ. Therefore, it is RECOMMENDED that the case be REMANDED to the ALJ so that he can discharge his duties pursuant to SSR 00-4p. Further, it is RECOMMENDED that Plaintiff's Motion for Summary Judgment be GRANTED in part and DENIED in part and Defendant's Cross-Motion for Summary Judgment be GRANTED in part and DENIED in part.

Id. at 28-29. Neither party objected to the R&R.

On July 26, 2010, this Court adopted the Magistrate Judge's R&R in its entirety. (ECF No. 35). The Court stated: "The Court concludes that the Magistrate Judge correctly determined that the ALJ erred in relying on vocational expert testimony without establishing that the testimony was consistent with the Dictionary of Occupational Titles and that this failure constitutes reversible error." Id. at 3. The Court remanded Plaintiff's case to the Social Security Administration for further administrative proceedings consistent with the R&R.

On March 24, 2010, Plaintiff filed the Motion for Attorney Fees. (ECF No. 36). On April 21, 2011, Defendant filed an Opposition. (ECF No. 38).

II. Discussion

A. Entitlement to Fees

Plaintiff contends that he is entitled to attorney's fees under the Equal Access to Justice Act ("EAJA") on the grounds that Plaintiff was the prevailing party, Defendant's position was not substantially justified, and there are no special circumstances to make an award of attorney's fees unjust. (ECF No. 36 at 11). Attorney for Plaintiff, Mary Mitchell, has submitted her declaration along with an itemized record of her time expended on this case. Plaintiff seeks $7,165.52 for attorney's fees which is comprised of 41.66 hours of work at the rate of $172.00 per hour*fn1 and $300.00 for paralegal services which is comprised of 5 hours of work at the rate of $60.00 per hour for a total of $7,465.52.

Defendant contends that Plaintiff is not entitled to fees under the Equal Access to Justice Act on the grounds that the majority of Plaintiff's arguments were rejected. Defendant contends that the ALJ's reliance on the evidence submitted by the vocational expert was substantially justified on the grounds that the vocational expert's ...


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