Umphrey v. Colvin

Filing 27

ORDER: IT IS ORDERED that Plaintiff's Application for Attorney Fees (Doc. 25 ) is GRANTED. IT IS FURTHER ORDERED that Plaintiff is awarded $6892.79 pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. See document for further details. Signed by Magistrate Judge Michelle H Burns on 5/19/2015.(REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Carolyn W. Colvin, Commissioner of the)
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Social Security Administration,
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Defendant.
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Roy Samuel Umphrey,

CIV 13-2396-PHX-MHB
ORDER

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Pending before the Court is Plaintiff Roy Samuel Umphrey’s application for attorney

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fees under the Equal Access to Justice Act (“EAJA”) (Doc. 25). After reviewing the

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arguments of the parties, the Court now issues the following ruling.

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Plaintiff filed applications for disability insurance benefits and supplemental security

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income alleging disability beginning February 2, 2007. (Transcript of Administrative Record

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(“Tr.”) at 15, 216-26.) His applications were denied initially and on reconsideration. (Tr.

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at 63-142.) Thereafter, Plaintiff requested a hearing before an administrative law judge. (Tr.

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at 161-62.) A hearing was held on July 25, 2012, (Tr. at 30-62), and the ALJ issued a

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decision finding that Plaintiff was not disabled (Tr. at 12-28). The Appeals Council denied

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Plaintiff’s request for review (Tr. at 1-6), making the ALJ’s decision the final decision of the

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Commissioner. Plaintiff then sought judicial review of the ALJ’s decision pursuant to 42

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U.S.C. § 405(g).

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This Court, after reviewing the administrative record and the arguments of the parties,

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remanded this matter to the Commissioner for further proceedings. (Doc. 23.) Specifically,

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the Court found that the ALJ failed to make a step five determination and identify or discuss

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any of the other jobs available in the national economy that could be performed. The ALJ

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simply found that Plaintiff was not disabled because he could perform his past work as a

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typesetter, warehouse lead worker, and school bus driver. The Court determined that this

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finding directly contradicted the vocational expert’s testimony and, as such, ordered that the

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decision of the ALJ be vacated and the case be remanded to the Commissioner. (Doc. 23.)

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A prevailing party in an action against the United States is entitled to an award of

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attorney fees and costs under the EAJA, 28 U.S.C. § 2412(d)(1)(A), unless the government’s

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position was “substantially justified.” The government’s position is substantially justified

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“if a reasonable person could think it correct, that is, if it has a reasonable basis in law and

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fact.” Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988).

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It is undisputed that Plaintiff is the prevailing party. Therefore, the issue before the

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Court is whether Defendant’s position in opposing Plaintiff’s appeal was “substantially

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justified.” Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008).

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Under the EAJA, “substantial justification” means that “‘the government’s position

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must have a reasonable basis in law and fact.’” Shafer, 518 F.3d at 1071 (quoting Corbin v.

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Apfel, 149 F.3d 1051, 1052 (9th Cir. 1998)). “Where ... the ALJ’s decision was reversed on

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the basis of procedural errors, the question is not whether [Defendant’s] position as to the

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merits of [Plaintiff’s] disability claim was substantially justified. Rather, the relevant

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question is whether [Defendant’s] decision to defend on appeal the procedural errors

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committed by the ALJ was substantially justified.” Id. (emphasis in original) (citations

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omitted).

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The Court concludes that Defendant’s decision to defend the ALJ’s determination was

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not substantially justified. In her decision, the ALJ found that Plaintiff was capable of

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performing less than the full range of light work. She found that Plaintiff could lift and carry

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10 pounds frequently and 20 pounds occasionally, do unlimited sitting, standing and walking

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with frequent climbing ramps and stairs, occasional climbing ladders, ropes or scaffolds,

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occasional crawling, occasional right upper extremity reaching in all directions and
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occasional handling, fingering and feeling with his right hand. (Tr. at 18.) When she asked

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the vocational expert, Mark Kelman, this hypothetical, he found that Plaintiff could not do

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his past relevant work. (Tr. at 57.) Specifically, he noted the occasional handling, finger and

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feeling with his right hand would preclude the past work both as it was performed by the

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claimant and as it was performed in the national economy. (Tr. at 57.) Mr. Kelman then

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identified other jobs available in the national economy that an individual of Plaintiff’s age,

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educational background, past work experience, and residual functional capacity could

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perform. (Tr. at 57-61.)

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However, the ALJ failed to make a step five determination and identify or discuss any

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of the other jobs available in the national economy that could be performed. (Doc. 23.) The

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ALJ simply found that Plaintiff was not disabled because he could perform his past work as

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a typesetter, warehouse lead worker, and school bus driver. The Court found that the ALJ’s

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decision directly contradicted the vocational expert’s testimony and ordered that the decision

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of the ALJ be vacated and the case be remanded to clarify and determine whether Plaintiff

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is able to perform other work in the national economy in view of his age, education, and

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work experience. (Doc. 23.) In light of the Court finding the ALJ’s actions to be erroneous,

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“[i]t follows a fortiori the government’s defense of the ALJ’s procedural errors was not

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substantially justified ... .” Shafer, 518 F.3d at 1072.

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Plaintiff’s counsel, Amy L. Foster, has filed an itemized statement of fees showing

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that she worked 36.3 hours on this case. Having reviewed the statement of fees, and having

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considered the relevant fee award factors, see Hensley v. Eckerhart, 461 U.S. 424, 429-30

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& n.3 (1983), the Court finds that the amount of the requested fee award is reasonable.

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Accordingly,

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IT IS ORDERED that Plaintiff’s Application for Attorney Fees (Doc. 25) is

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GRANTED;

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IT IS FURTHER ORDERED that Plaintiff is awarded $6892.79 pursuant to the
Equal Access to Justice Act, 28 U.S.C. § 2412.
DATED this 19th day of May, 2015.

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