Burrell v. Astrue

Filing 31

ORDER granting 27 Motion for Attorney Fees (EAJA) in the amount of $3,878.42. Signed by Magistrate Judge Katherine P. Nelson on 1/28/2013. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANTHONY GLENN BURRELL,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner
Of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 11-0141-N

ORDER
Plaintiff has filed a Motion for Attorneys’ Fees Under the Equal Access to Justice
Act (EAJA) (doc. 27). The Commissioner has filed a Response (doc. 29) opposing the
fee award on the grounds that the Commissioner’s position was substantially justified.
Plaintiff has filed a Reply (doc. 30).
The court remanded the plaintiff’s claim to the Commissioner (doc. 26), finding
that the ALJ had erred in relying on the grids rather than obtaining the testimony of a
vocational expert. Plaintiff was thus the prevailing party. Section 204(d) of the Equal
Access to Justice Act (EAJA), codified in 28 U.S.C. § 2412(d), provides in pertinent part
that “a court shall award to a prevailing party ... fees and other expenses ... in any civil
action ... brought by or against the United States ... unless the court finds that the position
of the United States was substantially justified.”
As stated in the order remanding this claim, plaintiff alleged back pain from an
on-the-job accident, knee pain from arthritis and bilateral foot pain from plantar
fibromatosis, a condition in which non-cancerous fibroid tumors grow in the bottom of
the feet, and from the two separate surgeries to remove those tumors. The ALJ found that

the back and foot pain constituted severe impairments. The Commissioner argues that his
position was substantially justified because the ALJ could reasonably have discounted
plaintiff’s subjective complaints of pain so that he could have found that such pain did
not impair plaintiff’s ability to work. The Commissioner asserts that “nothing in the
Court’s Order indicates that the Commissioner’s position was unreasonable,” doc. 29 at
3.
“It is only when the claimant can clearly do unlimited types of [ ] work ... that it is
unnecessary to call a vocational expert to establish whether the claimant can perform
work which exists in the national economy.” Allen v. Sullivan, 880 F.2d 1200, 1202
(11th Cir. 1989) (citation omitted); see Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir.
1990) (Exclusive reliance upon the grids is not appropriate when claimant has a
nonexertional impairment that significantly limits his basic work activities.) Pain is a
nonexertional impairment. The Commissioner’s current argument is thus that the ALJ
reasonably found plaintiff’s pain to have been so insignificant as to have not limited
plaintiff’s basic work activities is not supported by the record or the findings of the ALJ.
As noted, the ALJ found both sources of pain to be ‘severe:’ the Act defines a non-severe
impairment as an impairment or combination of impairments that “does not significantly
limit ... physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1521(a).
As the court held in its order remanding the claim, “it does not appear that the ALJ
addressed the existence of nonexertional impairments or whether this was a proper case
for use of the Grids.

In addition, the Court noted that the ALJ did not address the

plaintiff’s knee pain nor determine whether it was a severe impairment.

2

The undersigned finds that the Commissioner has failed to bear his burden of
demonstrating that his position in this litigation was substantially justified. The ALJ’s
error in failing to utilize a vocational expert was clear, and the ALJ failed to offer any
basis for that action. The ALJ’s determinations that two of plaintiff’s conditions caused
severe limitations and the fact that those conditions primary effect was pain severely
undermines any attempt to claim that the Commissioner could reasonably have found
such pain so insignificant as to have justified not calling a vocational expert.
The Commissioner does not challenge the number of hours or the hourly rate
claimed. The plaintiff’s calculation of the prevailing market rate is appropriate under this
court’s procedure as set out in Lucy v. Astrue, CV-06-147-C (S.D.Ala., July 5, 2007);
plaintiff requests an hourly rate of $180.41 per hour. In addition, the court’s review of
counsel’s time records demonstrates that the 21.5 hours claimed are reasonable and
necessary. These figures lead to a total attorneys’ fee of $3,878.42.
Plaintiff requests that the amount be paid to counsel. That does not comply with
precedent. See Astrue v. Ratliff, 130 S.Ct. 2521, 2524 (2010)(EAJA fees payable to
plaintiff, not counsel, and are subject to set-off).
Accordingly, it is hereby ORDERED that plaintiff’s Motion for Award of Fees is
GRANTED, and that the Commissioner shall pay to plaintiff the sum of $3,878.42.
DONE this the 28th day of January, 2013.

/s/ Katherine P. Nelson
UNITED STATES MAGISTRATE JUDGE

3