Putnam v. Astrue

Filing 41

ORDER denying 34 Plaintiff's Motion for Award of Attorney Fees Pursuant to the Equal Access to Justice Act. Signed by Senior Judge James A Teilborg on 1/12/2015.(TLB)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Eric Putnam, No. CV-12-00543-PHX-JAT Plaintiff, 10 11 v. 12 ORDER Michael J. Astrue, et al., 13 Defendants. 14 15 Before the Court is Plaintiff’s Motion for Award of Attorney’s Fees Pursuant to 16 the Equal Access to Justice Act. (Doc. 34). The Court now rules on the Motion. 17 I. Background 18 On April 23, 2010, a Social Security Administrative Law Judge (“ALJ”) found 19 Plaintiff “not disabled” under the Social Security Act. Plaintiff exhausted his appeals at 20 the agency, and subsequently filed this lawsuit. This Court reversed and remanded the 21 ALJ’s decision, finding error in the ALJ’s exclusive reliance on the Medical-Vocational 22 Guidelines at 20 C.F.R. § 404(P) app. 2 (“grids”): 23 . . . . The ALJ accepted the fact that Plaintiff has diminished use of his left 24 hand, but concluded that this limitation is irrelevant because Plaintiff is 25 right-handed and Plaintiff’s right hand is unaffected. (TR 26). However, 26 because the ALJ accepts the fact that Plaintiff has diminished use of his left 27 hand, Plaintiff is incapable of performing jobs requiring bilateral manual 28 dexterity. 1 Where a claimant is limited to sedentary work and has a permanent 2 injury to one hand which precludes jobs requiring bilateral manual 3 dexterity, reliance on the grids is legal error. Fife v. Heckler, 767 F.2d 4 1427, 1430 (9th Cir. 1985). Accordingly, the ALJ committed legal error by 5 relying on the grids in this case. 6 Moreover, where the grids “do not accurately and completely 7 describe [Plaintiff’s] limitations,” “the ALJ [is] required to take the 8 testimony of a vocational expert,” and failing to do so is reversible error. 9 Tackett v. Apfel, 180 F.3d 1094, 1104 (9th Cir. 1999) (emphasis in 10 original). Here, the Court finds that Plaintiff’s inability to use his left hand 11 renders the grids inapplicable. Nonetheless, the ALJ failed to hear 12 testimony from a vocational expert. Accordingly, the ALJ committed 13 reversible error. 14 (Doc. 32 at 12–13). Plaintiff then filed the current Motion, requesting attorney’s fees and costs under 15 16 the Equal Access to Justice Act (“EAJA”). 17 II. Discussion 18 On a motion for attorney’s fees and costs pursuant to the EAJA, a prevailing party 19 is entitled to attorney’s fees unless the government’s position was substantially justified 20 or special circumstances would make an award unjust. See 28 U.S.C. § 2412(d)(1)(A); 21 Perez-Arellano v. Smith, 279 F.3d 791, 793 (9th Cir. 2002). Under the EAJA, the 22 government’s position includes both its litigating position and the action or failure to act 23 by the agency upon which the civil action is based. 24 Furthermore, the Supreme Court has defined “substantially justified” as “justified to a 25 degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 26 (1988) (affirming Ninth Circuit’s holding that substantially justified means having a 27 reasonable basis both in law and fact); see also Abela v. Gustafson, 888 F.2d 1258, 1264 28 (9th Cir. 1989). The government bears the burden of showing that its position was -2- 28 U.S.C. § 2412(d)(2)(D). 1 substantially justified. Gonzales v. Free Speech Coalition, 408 F.3d 613, 618 (9th Cir. 2 2005). 3 The Government correctly points out that the standard of review of a social 4 security decision (“substantial evidence” standard) and the standard for awarding EAJA 5 attorney’s fees (“substantially justified” standard) are not synonymous. The Ninth Circuit 6 has made clear, however, that because the reversal of an agency decision is a “strong 7 indication” that the agency’s position was not substantially justified, it would be 8 “unusual” to reverse an agency decision and not award attorney’s fees under the EAJA. 9 Meier v. Colvin, 727 F.3d 867, 872 (9th Cir. 2013) (quoting Thangaraja v. Gonzales, 428 10 F.3d 870, 874 (9th Cir.2005)). 11 The error at issue here is the ALJ’s failure to utilize a vocational expert in light of 12 the fact that Plaintiff’s left hand injury rendered the grids inapplicable. (Doc. 32 at 12– 13 13). The Ninth Circuit has held that the grids can be used to determine that a claimant is 14 not disabled only under certain circumstances: 15 The grids are an administrative tool the Secretary may rely on when 16 considering claimants with substantially uniform levels of impairment. 17 They may be used, however, only when the grids accurately and completely 18 describe the claimant’s abilities and limitations. When a claimant’s non- 19 exertional limitations are “sufficiently severe” so as to significantly limit 20 the range of work permitted by the claimant’s exertional limitations, the 21 grids are inapplicable. In such instances, the Secretary must take the 22 testimony of a vocational expert, and identify specific jobs within the 23 claimant’s capabilities. 24 Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988) (internal quotations and citations 25 omitted). This Court held that the ALJ erred by relying on the grids to deem Plaintiff not 26 disabled, despite finding Plaintiff had diminished use of his left hand—a limitation which 27 the grids do not take into account. (Doc. 32 at 12–13). 28 Plaintiff argues that this error was not substantially justified because the ALJ’s -3- 1 error was a legal mistake and thus cannot be a close question. Plaintiff points out that this 2 Court relied on Ninth Circuit case law to determine that the ALJ erroneously relied 3 exclusively on the grids, and that under S.S.R. 85-15, limitations on dexterity narrow the 4 number of jobs a claimant can perform. 5 The Government argues that the ALJ was substantially justified in not using a 6 vocational expert because Plaintiff’s injuries were arguably not severe. The Government 7 reasons that the ALJ “did not include a manipulative limitation in his residual functional 8 capacity assessment, and expressly relied upon the residual functional capacity 9 assessment of Robert Estes, M.D., who found no manipulative impairment.” (Id.) 10 (internal emphasis and citations omitted). The Government also points out that 11 “neurologists Harry S. Morehead, M.D., and Daniela Caltaru, M.D., concluded that 12 Plaintiff’s left-sided weakness was nonphysiologic or ‘rather functional,’ indicating that 13 they found the nature and extent of such limitation questionable.” (Id.). Furthermore, the 14 Government argues that S.S.R. 85-15, cited by Plaintiff, specifically notes that a 15 vocational expert “would not ordinarily be required where a person has a loss of ability to 16 feel the size, shape, temperature, or texture of an object by the fingertips, since this is a 17 function required in very few jobs.” In short, because the severity of Plaintiff’s left arm 18 injury was “questionable” and the need for a vocational expert is not always needed to 19 make these determinations, the Government argues that it was a close question whether 20 the ALJ could rely solely on the grids to make a disability determination. 21 The Court agrees with the Government. Reasonable minds could disagree as to 22 whether Plaintiff’s left hand injury “sufficiently severe” to require a vocational expert. 23 Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988). Indeed, as the Government 24 points out, there was testimony on the record that Plaintiff’s left hand injury was not very 25 severe, and that his left-sided weakness was questionable. Additionally, S.S.R. 85-15 26 does not definitively require vocational experts to be used in all cases involving 27 limitations on fingering or manipulation. Rather, the rule specifically states that such 28 experts “may be needed,” and that even where a claimant has lost the ability to feel the -4- 1 size, shape, temperature, or texture of objects with his hand, a vocational expert “would 2 not ordinarily be needed.” Therefore, although the Court found that a vocational expert 3 should have been used, the ALJ’s failure to obtain vocational expert testimony was 4 substantially justified. 5 III. Conclusion 6 Accordingly, 7 IT IS ORDERED that Plaintiff’s Motion for Award of Attorney’s Fees Pursuant 8 9 to the Equal Access to Justice Act, (Doc. 34), is DENIED. Dated this 12th day of January, 2015. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-

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