Perkins v. Astrue

Filing 26

ORDER denying 21 Plaintiff's Motion for Attorney Fees. Signed by Senior Judge James A Teilborg on 8/13/2014.(TLB)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CV-12-01801-PHX-JAT

Michael Perkins,
Plaintiff,

ORDER

v.

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Carolyn w. Colvin, Acting Commissioner,
Social Security Administration,

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Defendant.
Previously this Court remanded this case to the agency to further develop the
record. Specifically, this Court stated:

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At step five of the disability evaluation process, the burden shifted to
the Commissioner to show that Plaintiff could engage in gainful
employment in the national economy. See Reddick, 157 F.3d at 721. The
Commissioner can make this showing in one of two ways. First, a
vocational expert can be called to evaluate a factual scenario and testify
about “what kinds of jobs the claimant still can perform and whether there
is a sufficient number of those jobs available in the claimant’s region or in
several other regions of the economy to support a finding of not disabled.”
Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 578 (9th Cir.
1988) (internal citation omitted). Second, the grids can be used to
determine if a particular claimant is capable of performing certain kinds of
work in significant numbers in the national economy. Id.
The grids are an administrative tool the Secretary may rely on
when considering claimants with substantially uniform levels
of impairment. They may be used, however, only when the

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grids accurately and completely describe the claimant’s
abilities and limitations. When a claimant’s non-exertional
limitations are “sufficiently severe” so as to significantly limit
the range of work permitted by the claimant’s exertional
limitations, the grids are inapplicable. In such instances, the
Secretary must take the testimony of a vocational expert, and
identify specific jobs within the claimant’s capabilities.
Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988) (internal
quotations and citations omitted). Non-exertional limitations that are not
covered by the Grids are those that limit an individual’s ability to work
“without directly affecting his or her strength. . . . Examples of nonexertional limitations are mental, sensory, postural, manipulative, or
environmental (e.g. [,] inability to tolerate dust or fumes) limitations.”
Desrosiers, 846 F.2d at 579. However, “[i]t is not necessary to permit a
claimant to circumvent the guidelines simply by alleging the existence of a
non-exertional impairment, such as pain, validated by a doctor’s opinion
that such impairment exists. To do so frustrates the purpose of the
guidelines.” Id. at 577.

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Here, Plaintiff argues that he suffers from non-exertional limitations
related to his cognitive impairments. Plaintiff points to the opinion of Dr.
Oizumi, a consultative licensed clinical psychologist, who stated that
Plaintiff would likely have trouble adhering to a consistent schedule and
has difficult adapting to changes in his environment. (TR 503). Plaintiff
argues that the ALJ also improperly omitted consideration of Mr. Perkins’
fatigue, memory and concentration limitations, which are non-exertional
limitations requiring that the ALJ consult a vocational expert. The
Commissioner argues that Plaintiff’s limitations are consistent with the
basic mental demands of competitive, remunerative, unskilled work. While
this may be true, Plaintiff did have non-exertional limitations that were not
considered by the ALJ. As such, the ALJ was required to take the
testimony of a vocational expert.

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Doc. 19 at 13-15. In this same Order, this Court affirmed the ALJ’s decision with respect

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to several other claims of error on appeal. See id. at 5-13.

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Plaintiff now moves for attorney’s fees under the Equal Access to Justice Act

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(“EAJA”). Plaintiff argues that this Court found that the ALJ made an error of law,

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therefore, Plaintiff is entitled to fees. Doc. 25 at 2.

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In Tobeler v. Colvin, 749 F.3d 830 (9th Cir. 2014), the Ninth Circuit Court of

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Appeals stated as follows:

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EAJA provides that ‘a court shall award to a prevailing party other
than the United States fees and other expenses ... incurred by that party in
any civil action ... unless the court finds that the position of the United
States was substantially justified or that special circumstances make an
award unjust.’ ” Meier, 727 F.3d at 870 (quoting 28 U.S.C. §
2412(d)(1)(A)). “It is the government’s burden to show that its position was
substantially justified.” Id. (citing Gutierrez v. Barnhart, 274 F.3d 1255,
1258 (9th Cir.2001)). “Substantial justification means ‘justified in
substance or in the main—that is, justified to a degree that could satisfy a
reasonable person.’ ” Id. (quoting Pierce v. Underwood, 487 U.S. 552, 565,
(1988)) (internal quotation marks omitted). “Put differently, the
government’s position must have a ‘reasonable basis both in law and fact.’
” Id. (quoting Pierce, 487 U.S. at 565). “The ‘position of the United States’
includes both the government’s litigation position and the underlying
agency action giving rise to the civil action.” Id. Thus, if “the government’s
underlying position was not substantially justified, we [must award fees
and] need not address whether the government’s litigation position was
justified.” Id. at 872.
Tobeler, 749 F.3d at 832.
Here, Plaintiff makes a similar argument to the plaintiff in Tobeler. Specifically,
Plaintiff argues that the government’s underlying position (i.e. the ALJ’s decision) was
not substantially justified. Doc. 22 at 6. Plaintiff then argues that the government’s
position defending the ALJ’s decision before this Court also was not substantially
justified because the ALJ’s decision was wrong. Id.
Conversely, the government argues that reasonable minds could reach different
conclusions regarding whether “claimant’s moderate [non-exertional] limitations” were
of a sufficient level of severity as to make the Medical Vocational Guidelines
inapplicable and require the ALJ to seek the assistance of a vocational expert. Doc. 24 at
4, 6. The government concludes that because claimant’s symptoms were not particularly
severe, the government’s position, both legally and factually, including the ALJ’s
decision and the litigation position on appeal, were substantially justified. Plaintiff
responds are argues that because this Court concluded that the ALJ made an error “of

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la the gov
aw”
vernment’s position ca
annot be sub
bstantially justified. D 25 at 2.
Doc.
.

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Becau the severity of a claimant’s s
use
c
symptoms (
(which is a factual det
termination)

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mpacts whe a vocati
en
ional expert is require the Cou disagree that the error found
ed,
urt
es
d
im

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here was necessarily on “of law.” Further, the Court agrees wit the gove
h
ne
,
th
ernment tha
at

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th case pre
his
esented a cl
lose questio regardin whether a vocationa expert w required
on
ng
al
was
d.

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See Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2
S
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2007) (hold
ding that th plaintiff’s
he

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depression was not a su
d
w
ufficiently severe non-e
s
extertional limitation t it requi
that
ired the ALJ
J

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to have the assistance of a vocational ex
o
e
e
xpert).

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government’ position was substa
’s
antially just
tified. The
erefore, the Court will not award
e
d

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Ac
ccordingly, the Cour finds the
,
rt
e

fe under th EAJA.1
ees
he

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Based on the for
d
regoing,

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IT IS ORDERE that Plai
S
ED
intiff’s mot
tion for atto
orney’s fees (Doc. 21) i denied.
is

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Dated this 13th day of Augu 2014.
d
d
ust,

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Bec
cause the Court has decided not to award fees, the C
C
d
Court need not address
whether any award of fees in this case shoul be reduce based on the numb of issues
w
y
f
ld
ed
n
ber
on which thi Court aff
is
firmed the decision of the ALJ. See genera Hardisty v. Astrue¸
d
f
ally
ty
592 F.3d 1072, 1077 (9 Cir. 201 (“[The] holding [i Flores v. Shalala, 4 F.3d 562
9th
10)
]
in
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2,
t
he
n
ding attorne
eys’ fees on
n
569 (9th Cir. 1995)] … does not address th question of award
ssues the cla
aimant raise but on which he did not earn r
ed
w
d
remand.”).
is
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