Jones v. Astrue

Filing 27

MEMORANDUM OPINION AND ORDER directing that the 19 First MOTION for Attorney Fees be and is hereby GRANTED, that the plf be and is hereby AWARDED fees in the amount of $3,263.95, and that the check for the amount of attorney's fees be mailed to counsel for the plaintiff. Signed by Honorable Judge Charles S. Coody on 8/30/11. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
KIMBERLY M. JONES,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 1:09cv715-CSC

MEMORANDUM OPINION and ORDER
On May 26, 2011, the plaintiff filed a motion for attorney’s fees pursuant to the Equal
Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). (Doc. # 19). The Commissioner objects
to an award of fees because his “position – although ultimately unsuccessful – was
substantially justified, that is reasonable in law and fact.” (Def’s Res., doc. # 23 at 1).
Jones applied for and was denied disability insurance and supplemental security
income benefits by the Commissioner. After her application was denied, she sought judicial
review in this court. On March 9, 2011, the court concluded that the ALJ erred and remanded
the case for further proceedings.
A Social Security disability claimant is a prevailing party entitled to seek EAJA fees
when the claimant obtains a remand for reconsideration of her case by the Commissioner.
See Shalala v. Schaefer, 509 U.S. 292, 300-01 (1993). Thus, the plaintiff is a prevailing
party.
Under the EAJA, the court “shall award” attorney’s fees “unless the court finds that
the position of the United States was substantially justified or that special circumstances

make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). See also Gisbrecht v. Barnhart, 535
U.S. 789, 796 (2002). “The government’s position is substantially justified under the EAJA
when it is justified to a degree that would satisfy a reasonable person - i.e. when it has a
reasonable basis in both law and fact. The government bears the burden of showing that its
position was substantially justified.” United States v. Douglas, 55 F.3d 584, 588 (11th Cir.
1995) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)).
In this circuit a vocational expert’s testimony is fatally deficient as a matter of law if
the ALJ’s hypothetical questions fail to precisely set out all of the claimant’s impairments.
See Harrell v. Harris, 610 F.2d 355 (5th Cir. 1980)1 (citing with approval Stephens v. Sec. of
Health, Ed. & Welfare, 603 F.2d 36, 41-42 (8th Cir. 1979). To constitute substantial evidence
to support a disability decision, a vocational expert’s testimony must be based upon
hypothetical questions that comprehensively describe the claimant’s impairments. See
Harrell, 610 F.2d at 359. Unless the vocational testimony concerning the availability of jobs
addresses the plaintiff's educational level, work skills, experience, and limitations, including
both exertional and non-exertional limitations, the decision of the ALJ is not supported by
substantial evidence. Brenem v. Harris, 621 F.2d 688 (5th Cir. 1980).
In this case, the ALJ did not ask the vocational expert to consider any of the
limitations set out by Drs. Jordan, Palmer and Banner, in particular Jones’ limitations in
concentration, persistence and pace. (Mem. Op., doc. # 17, at 6). Accordingly, the court
found that the ALJ erred, as a matter of law, by not fully including all the plaintiff’s

1

See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc) (adopting as binding
precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on
September 30, 1981.)

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restrictions in the hypothetical questions posed to the vocational expert. Because the ALJ
failed to comply with the legal requirement that the hypotheticals posted to the vocational
expert account for all of the plaintiff’s limitations, the ALJ committed legal error requiring
a remand for further proceedings. Thus, the Commissioner’s position in this litigation did
not have a reasonable basis in law. Pierce requires that the government’s position be
reasonable both in fact and law to be substantially justified.
The Commissioner argues that the plaintiff is not entitled to fees because his position
was “reasonable in both law and fact.” (Def’s Res., doc. # 24, at 3). First, the defendant
argues that because the court relied on Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176 (11th
Cir. 2011), and Winschel was not decided until after briefing was complete in this case, his
position was reasonable in law and fact. (Id. at 4). Winschel specifically addressed the need
to include limitations in concentration, persistence and pace identified in a Psychiatric
Review Technique in hypothetical questions to the vocational expert. 631 F.3d at 1180.
Winschel did not create new law; it reaffirmed the law of this circuit. See Winschel, supra.
Next, the defendant rehashes his positions in support of the ALJ’s determination and
misses the mark. The court remanded the case because the ALJ failed in his duty to properly
include all of the plaintiff’s limitations in his hypothetical questions to the vocational expert.
Because the ALJ did not explicitly or implicitly include all of Jones’ limitations in the
hypothetical questions, the court was unable to determine, as a matter of law, whether the
ALJ’s residual functional capacity determination was supported by substantial evidence.
(Mem. Op., doc. # 17, at 7). Consequently, the Commissioner’s position was not reasonable
in law and was not substantially justified. The plaintiff is entitled to an award of fees under

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EAJA.
The plaintiff seeks fees in the amount of $3,263.95.2 (Doc. # 19). The Commissioner
does not challenge any of the hours expended by counsel as unreasonable nor does he
challenge the hourly rate. Accordingly, upon consideration of the motion, and for good
cause, it is
ORDERED that the motion for attorney’s fees (doc. # 19) be and is hereby
GRANTED, that the plaintiff be and is hereby AWARDED fees in the amount of $3,263.95,3
and that the check for the amount of attorney’s fees be mailed to counsel for the plaintiff.
Done this 30th day of August 2011.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

2

To the extent that Plaintiff’s counsel seeks an additional award of attorney’s fees, see Pl’s
Reply, doc. # 26, that request is not properly before the court.
3

28 U.S.C. § 2412(d)(1)(A) authorizes the court to award fees to the prevailing party. See 28
U.S.C. § (d)(2)(B). On June 14, 2010, the United States Supreme Court decided Astrue v. Ratliff, 130
S.Ct.2521 (2010) in which the Court unambiguously held that attorney’s fees are awarded to the
prevailing litigant, not to prevailing litigant’s attorney. See also Reeves v. Astrue, 526 F.3d 732, 738 (11th
Cir. 2008) (“attorney’s fees are awarded to the prevailing party, not to the prevailing party's attorney.”).
Thus, fees are awarded directly to the plaintiff.

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