Ring v. Astrue

Filing 22

ORDER granting 18 Plaintiff's Motion for Attorney Fees. The Clerk shall enter judgment in favor of Plaintiff in the amount of $6,432.80 for attorneys' fees and $350.00 for costs against Defendant, with interest at the federal judgment rate from the date of entry of judgment. Signed by Judge Neil V Wake on 3/13/12.(LSP)

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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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Michael J. Astrue, Commissioner of Social)
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Security,
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Defendant.
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Ronald L. Ring,

No. CV 10-08217-PCT-NVW
ORDER

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

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Access to Justice Act (Doc. 18).

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I.

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Background
Ring has hepatitis C, liver cirrhosis, and osteoarthritis in his right knee. He also is

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morbidly obese. Ring protectively applied for disability insurance benefits and

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supplemental security income, alleging disability since December 7, 2007. On December

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9, 2009, Ring appeared and testified at an administrative hearing at which he was

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represented by counsel. Victoria Rei, an impartial vocational expert, also appeared and

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testified telephonically at the hearing.

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On February 10, 2010, the Administrative Law Judge (“ALJ”) issued a decision

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that Ring was not disabled within the meaning of the Social Security Act, which

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subsequently became the Commissioner of Social Security’s final decision. On

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November 10, 2011, the Court vacated the final decision of the Commissioner and

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remanded the case for further proceedings.

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Ring seeks an award of attorney’s fees pursuant to 28 U.S.C. § 2412(d) in the

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amount of $6,432.80 and costs in the amount of $350.00. The Commissioner opposes

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Ring’s motion only on the ground that his position was substantially justified. The

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Commissioner does not object to the amount of award requested.

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II.

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Legal Standard
On a motion for attorney’s fees and costs pursuant to the Equal Access to Justice

Act (“EAJA”), a prevailing party is entitled to attorney’s fees “unless th[is] court finds

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that the position of the United States was substantially justified or that special

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circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). Under the EAJA, the

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

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act by the agency upon which the civil action is based. 28 U.S.C. § 2412(d)(2)(D). Here,

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then, it includes the ALJ’s decision and the Commissioner’s arguments to this Court in

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defense of the ALJ’s decision.

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The Supreme Court has defined “substantially justified” as “justified to a degree

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that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988).

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The government bears the burden of showing that its position was substantially justified.

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Gonzales v. Free Speech Coalition, 408 F.3d 613, 618 (9th Cir. 2005).

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III.

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Analysis
As previously found, substantial evidence did not support the ALJ’s finding that

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Ring’s skills acquired from past relevant work are transferable to other occupations with

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jobs existing in significant numbers in the national economy. Specifically, the ALJ failed

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to elicit whether the vocational expert’s testimony that a person with Ring’s limitation to

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occasional kneeling could perform the job of “parts and order clerk,” whether the

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vocational expert’s opinion conflicted with the Dictionary of Occupational Titles, and, if

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so, whether there was a legitimate explanation for the conflict. The ALJ plainly failed to

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fulfill his special duty to fully and fairly develop the record. See Smolen v. Chater, 80

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F.3d 1273, 1288 (9th Cir. 1996).

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Moreover, the Commissioner was not substantially justified in defending the

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ALJ’s oversight in performing routine questioning of a vocational expert. Special

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circumstances do not make a fee award unjust, and the EAJA therefore requires the Court

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to award Ring attorneys’ fees and other expenses.

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IT IS THEREFORE ORDERED that Plaintiff’s Motion for Attorney’s Fees

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Pursuant to the Equal Access to Justice Act (Doc. 18) is granted. Plaintiff is awarded fees

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in the amount of $6,432.80 and costs in the amount of $350.00.

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IT IS FURTHER ORDERED that the Clerk enter judgment in favor of Plaintiff in

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the amount of $6,432.80 for attorneys’ fees and $350.00 for costs against Defendant, with

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interest at the federal judgment rate from the date of entry of judgment.

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DATED this 13th day of March, 2012.

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