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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Eric Putnam,

No. CV-12-00543-PHX-JAT
Plaintiff,

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v.

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ORDER

Michael J. Astrue, et al.,

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Defendants.

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Before the Court is Plaintiff’s Motion for Award of Attorney’s Fees Pursuant to

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the Equal Access to Justice Act. (Doc. 34). The Court now rules on the Motion.

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I.

Background

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On April 23, 2010, a Social Security Administrative Law Judge (“ALJ”) found

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Plaintiff “not disabled” under the Social Security Act. Plaintiff exhausted his appeals at

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the agency, and subsequently filed this lawsuit. This Court reversed and remanded the

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ALJ’s decision, finding error in the ALJ’s exclusive reliance on the Medical-Vocational

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Guidelines at 20 C.F.R. § 404(P) app. 2 (“grids”):

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. . . . The ALJ accepted the fact that Plaintiff has diminished use of his left

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hand, but concluded that this limitation is irrelevant because Plaintiff is

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right-handed and Plaintiff’s right hand is unaffected. (TR 26). However,

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because the ALJ accepts the fact that Plaintiff has diminished use of his left

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hand, Plaintiff is incapable of performing jobs requiring bilateral manual

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dexterity.

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Where a claimant is limited to sedentary work and has a permanent

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injury to one hand which precludes jobs requiring bilateral manual

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dexterity, reliance on the grids is legal error. Fife v. Heckler, 767 F.2d

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1427, 1430 (9th Cir. 1985). Accordingly, the ALJ committed legal error by

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relying on the grids in this case.

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Moreover, where the grids “do not accurately and completely

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describe [Plaintiff’s] limitations,” “the ALJ [is] required to take the

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testimony of a vocational expert,” and failing to do so is reversible error.

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Tackett v. Apfel, 180 F.3d 1094, 1104 (9th Cir. 1999) (emphasis in

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original). Here, the Court finds that Plaintiff’s inability to use his left hand

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renders the grids inapplicable. Nonetheless, the ALJ failed to hear

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testimony from a vocational expert. Accordingly, the ALJ committed

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reversible error.

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(Doc. 32 at 12–13).
Plaintiff then filed the current Motion, requesting attorney’s fees and costs under

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the Equal Access to Justice Act (“EAJA”).

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II.

Discussion

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On a motion for attorney’s fees and costs pursuant to the EAJA, a prevailing party

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is entitled to attorney’s fees unless the government’s position was substantially justified

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or special circumstances would make an award unjust. See 28 U.S.C. § 2412(d)(1)(A);

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Perez-Arellano v. Smith, 279 F.3d 791, 793 (9th Cir. 2002). Under the EAJA, the

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government’s position includes both its litigating position and the action or failure to act

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by the agency upon which the civil action is based.

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Furthermore, the Supreme Court has defined “substantially justified” as “justified to a

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degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565

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(1988) (affirming Ninth Circuit’s holding that substantially justified means having a

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reasonable basis both in law and fact); see also Abela v. Gustafson, 888 F.2d 1258, 1264

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(9th Cir. 1989). The government bears the burden of showing that its position was

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28 U.S.C. § 2412(d)(2)(D).

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substantially justified. Gonzales v. Free Speech Coalition, 408 F.3d 613, 618 (9th Cir.

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2005).

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The Government correctly points out that the standard of review of a social

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security decision (“substantial evidence” standard) and the standard for awarding EAJA

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attorney’s fees (“substantially justified” standard) are not synonymous. The Ninth Circuit

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has made clear, however, that because the reversal of an agency decision is a “strong

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indication” that the agency’s position was not substantially justified, it would be

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“unusual” to reverse an agency decision and not award attorney’s fees under the EAJA.

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Meier v. Colvin, 727 F.3d 867, 872 (9th Cir. 2013) (quoting Thangaraja v. Gonzales, 428

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F.3d 870, 874 (9th Cir.2005)).

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The error at issue here is the ALJ’s failure to utilize a vocational expert in light of

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the fact that Plaintiff’s left hand injury rendered the grids inapplicable. (Doc. 32 at 12–

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13). The Ninth Circuit has held that the grids can be used to determine that a claimant is

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not disabled only under certain circumstances:

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The grids are an administrative tool the Secretary may rely on when

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considering claimants with substantially uniform levels of impairment.

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They may be used, however, only when the grids accurately and completely

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describe the claimant’s abilities and limitations. When a claimant’s non-

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exertional limitations are “sufficiently severe” so as to significantly limit

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the range of work permitted by the claimant’s exertional limitations, the

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grids are inapplicable. In such instances, the Secretary must take the

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testimony of a vocational expert, and identify specific jobs within the

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claimant’s capabilities.

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Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988) (internal quotations and citations

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omitted). This Court held that the ALJ erred by relying on the grids to deem Plaintiff not

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disabled, despite finding Plaintiff had diminished use of his left hand—a limitation which

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the grids do not take into account. (Doc. 32 at 12–13).

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Plaintiff argues that this error was not substantially justified because the ALJ’s

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error was a legal mistake and thus cannot be a close question. Plaintiff points out that this

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Court relied on Ninth Circuit case law to determine that the ALJ erroneously relied

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exclusively on the grids, and that under S.S.R. 85-15, limitations on dexterity narrow the

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number of jobs a claimant can perform.

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The Government argues that the ALJ was substantially justified in not using a

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vocational expert because Plaintiff’s injuries were arguably not severe. The Government

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reasons that the ALJ “did not include a manipulative limitation in his residual functional

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capacity assessment, and expressly relied upon the residual functional capacity

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assessment of Robert Estes, M.D., who found no manipulative impairment.” (Id.)

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(internal emphasis and citations omitted). The Government also points out that

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“neurologists Harry S. Morehead, M.D., and Daniela Caltaru, M.D., concluded that

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Plaintiff’s left-sided weakness was nonphysiologic or ‘rather functional,’ indicating that

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they found the nature and extent of such limitation questionable.” (Id.). Furthermore, the

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Government argues that S.S.R. 85-15, cited by Plaintiff, specifically notes that a

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vocational expert “would not ordinarily be required where a person has a loss of ability to

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feel the size, shape, temperature, or texture of an object by the fingertips, since this is a

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function required in very few jobs.” In short, because the severity of Plaintiff’s left arm

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injury was “questionable” and the need for a vocational expert is not always needed to

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make these determinations, the Government argues that it was a close question whether

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the ALJ could rely solely on the grids to make a disability determination.

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The Court agrees with the Government. Reasonable minds could disagree as to

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whether Plaintiff’s left hand injury “sufficiently severe” to require a vocational expert.

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Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988). Indeed, as the Government

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points out, there was testimony on the record that Plaintiff’s left hand injury was not very

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severe, and that his left-sided weakness was questionable. Additionally, S.S.R. 85-15

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does not definitively require vocational experts to be used in all cases involving

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limitations on fingering or manipulation. Rather, the rule specifically states that such

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experts “may be needed,” and that even where a claimant has lost the ability to feel the

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size, shape, temperature, or texture of objects with his hand, a vocational expert “would

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not ordinarily be needed.” Therefore, although the Court found that a vocational expert

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should have been used, the ALJ’s failure to obtain vocational expert testimony was

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substantially justified.

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III.

Conclusion

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Accordingly,

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IT IS ORDERED that Plaintiff’s Motion for Award of Attorney’s Fees Pursuant

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to the Equal Access to Justice Act, (Doc. 34), is DENIED.
Dated this 12th day of January, 2015.

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