Miranda v. Astrue
Filing
30
ORDER granting 24 Plaintiff's "Opposed Motion for Attorney Fees Pursuant to the Equal Access to Justice Act" and awarding $5,840.62 in fees to Plaintiff. By Magistrate Judge Craig B. Shaffer on 11/18/2011. (cbslc1)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 09-cv-02297-WJM
REBECCA MIRANDA,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner, Social Security Administration
Defendant.
ORDER ON MOTION FOR ATTORNEY FEES
Magistrate Judge Craig B. Shaffer
This civil action is before the court on Plaintiff Miranda’s “Motion for Attorney Fees
Pursuant to the Equal Access to Justice Act” (doc. #24) filed July 18, 2011. Pursuant to the
Order of Reference dated August 10, 2011 (doc. # 28) and the memorandum dated August 10,
2011 (doc. #29), this matter was referred to the Magistrate Judge. The court has reviewed the
Motion, Defendant’s Response (filed July 26, 2011) (doc. #26), the pleadings, briefs, record, the
entire case file, and the applicable law and is sufficiently advised in the premises.
I.
Statement of the Case
The background of this case is summarized as follows from Judge Martinez’s “Order
Reversing Administrative Law Judge’s Decision and Remanding Case for Further Proceedings”
filed on April 18, 2011 (doc. #21):
In 2006, Plaintiff filed applications for disability insurance benefits and
supplemental security income, alleging disability as of November 25, 2006, when she was
41 years old. She claimed disability due to herniated discs, knee problems, and
degenerative disc disease. Plaintiff has a high school equivalency GED and has worked
in the past as a housekeeping cleaner and head or supervisory housekeeper.
1
Plaintiff’s applications were denied on June 5, 2007. Her claim was heard by an
ALJ on August 20, 2008. Plaintiff and a vocational expert (VE), Marin L. Rauer, testified
at the hearing.
On December 23, 2008, the ALJ issued a written decision in accordance with the
Commissioner’s five-step sequential evaluation process. At step one, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since November 25, 2006. At
step two, he found that Plaintiff suffered from the following severe impairments:
degenerative disc disease, osteoarthritis, and obesity. At step three, the ALJ found that
Plaintiff’s impairments, while severe, did not meet any of the impairments listed in the
social security regulations. At step four, the ALJ found that Plaintiff had the residual
functional capacity (RFC) to perform “light work” as defined in the regulations, except
she could lift 15 pounds frequently and 25 pounds occasionally and would need to change
positions approximately every two hours. Given this RFC, the ALJ found that Plaintiff
could perform her past relevant work as a housekeeping cleaner and supervisory
housekeeper. Accordingly, the ALJ found that Plaintiff was not disabled within the
meaning of the Act and, thus, not entitled to benefits. The Appeals Council denied
Plaintiff’s request for review on May 7, 2009. Plaintiff then filed [an action with the
District Court] seeking review of the Commissioner’s decision.
(See doc. #21 at 1-3) (footnotes omitted). The District Court found “that the ALJ erred by not
properly addressing the opinions of Plaintiff’s treating physicians,” reversed the determination
that Plaintiff is not disabled, and remanded the matter for further proceedings pursuant to 42
U.S.C. § 405(g).1 (See doc. #21 at 7). Plaintiff now seeks attorney fees under the Equal Access
to Justice Act (“EAJA”). (See doc. #24).
II.
Standard of Review
A party is entitled to attorney fees pursuant to EAJA if she is a prevailing party, “unless
the court finds that the position of the United States was substantially justified . . . .” 28 U.S.C. §
2412(d)(1)(A). A party is considered a prevailing party if she obtains a remand under 42 U.S.C.
1
“The court shall have power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the Commissioner of Social
Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
2
§ 405(g), which occurs when the court makes a judgment about whether the Commissioner’s
decision was properly made. Hartter v. Apfel, 1998 WL 208871, at *1 (10th Cir. 1998); Brown
v. Shalala, 1995 WL 462212, at *2 (D. Kan. 1995) (citing Shalala v. Schaefer, 113 S. Ct. 2625,
2631-32 (1993)). In the case of such a judgment, the party is considered a “prevailing party” for
purposes of EAJA fees, “regardless of whether [s]he later succeeds in obtaining the requested
benefits.” Brown, 1995 WL 462212, at *2 (citing Schaefer, 113 S. Ct. at 2631-32). The
government’s position is considered “‘substantially justified’ if it had a reasonable basis both in
law and in fact.” Pierce v. Underwood, 487 U.S. 552, 563 (1988). As such, the position must be
“justified to a degree that could satisfy a reasonable person,” but this does not require that the
government’s position be correct. Id. at 565, 566 n.2. The burden of proof for showing that the
government’s position was substantially justified lies with the Commissioner. Hackett v.
Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007).
III.
Analysis
A.
Entitlement to Attorney Fees
In the instant case, Judge Martinez reversed the ALJ’s determination that Miranda is not
disabled and remanded the case, thus qualifying Miranda as a “prevailing party” for purposes of
determining whether she should be granted EAJA fees at this time. See Harrold v. Astrue, 372 F.
App’x 903, 904 (10th Cir. 2010) (finding that since the defendant obtained a remand under
sentence four of 42 U.S.C. § 405(g), he is a prevailing party for EAJA purposes).
EAJA fees may only be granted to a prevailing party if the government’s position was not
justified. See 28 U.S.C. § 2412(d)(1)(A). Miranda asserts that the government’s position was
not substantially justified because the ALJ did not fully consider the opinions of the Plaintiff’s
3
treating physicians. (See doc. # 24 at 2; doc. #25 at 1, 4). The Code of Federal Regulations sets
forth the following requirements for weighing medical opinions:
If we find that a treating source's opinion . . . is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in your case record, we will give it controlling weight. When we do
not give the treating source's opinion controlling weight, we apply the factors listed in
paragraphs (d)(2)(i) and (d)(2)(ii) of this section, as well as the factors in paragraphs
(d)(3) through (d)(6) of this section in determining the weight to give the opinion. We
will always give good reasons in our notice of determination or decision for the weight
we give your treating source's opinion.
20 C.F.R. § 404.1527(d)(2). “An ALJ may . . . discount a physician’s opinion; however, the
treating physician rule mandates that the ALJ do so by setting forth specific, legitimate reasons.”
Jenkins v. Chater, 1996 WL 145677, at *2 (10th Cir. 1996); see also Byron v. Heckler, 742 F.2d
1232, 1235 (10th Cir. 1984) (noting that the testimony of the claimant’s physician must be given
substantial weight unless good cause is shown to the contrary, in which case, specific, legitimate
reasons must be provided for disregarding the testimony). Thus, the ALJ must explain why he
gave the weight he did to the treating physician’s opinion. Even though the treating physician’s
opinion generally should be given more weight, the ALJ is not required to give it controlling
weight. However, the opinion may not be rejected unless the ALJ provides the reasoning for the
weight that was given. Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003).
Judge Martinez found that the ALJ’s assessment did not ignore the treating physicians’
opinions completely, but gave the opinions such cursory consideration it is nearly impossible to
tell “whether the ALJ overlooked [the] restrictions, ignored them altogether, or what weight if
any, he gave them.” (See doc. #21 at 5). Judge Martinez found that the requirement that the ALJ
give good reasons for the weight assigned to the opinion or “specific, legitimate reasons” for
4
rejecting the opinion, was not satisfied here, citing Watkins, 350 F.3d at 1301. (See id.).
Although the Defendant provides reasons for the ALJ’s cursory treatment of these physicians’
opinions in the “Response to Plaintiff’s Motion for Attorney Fees Pursuant to the Equal Access
to Justice Act” (doc. #24), Judge Martinez found these post-hoc explanations did not “correct”
the ALJ’s shortcomings for purposes of this analysis. See Grogan v. Barnhart, 399 F.3d 1257,
1263 (10th Cir. 2005). Because Judge Martinez found that the Defendant failed to explain the
weight, if any, given to the treating physicians’ opinions, Defendant’s position was not
substantially justified.
B.
Reasonableness of Attorney Fees
“Attorney fees shall not be awarded in excess of $125 per hour unless the court
determines that an increase in the cost of living . . . justifies a higher fee.” 28 U.S.C. §
2412(d)(2)(A)(ii). The burden of proving that the fees are reasonable falls to the Plaintiff’s
attorney. Cruz v. Astrue, 2011 WL 1157463, at *6 (N.D. Ind. 2011); cf. Hensley v. Eckerhart,
461 U.S. 424, 437 (1983) (“the fee applicant bears the burden of establishing entitlement to an
award and documenting the appropriate hours expended and hourly rates.”). The Defendant has
not objected to Miranda’s fee request. Even when the Commissioner does not object to the fees,
as here, the court may determine whether the fees are reasonable. Davis v. Astrue, 2009 WL
3923899, at *2 (W.D. Ark. 2009). Attorneys must submit documentation sufficient to show
hours worked, details of the work, and the rate claimed. 28 U.S.C. § 2412(d)(1)(B). Counsel in
this case submitted the necessary documentation showing that the amount of hours worked was
reasonable, and requested fees at a rate of $173.75 per hour based on her calculations using the
Consumer Price Index (“CPI”). (See doc. #24-2). The district court may authorize an increase of
5
the hourly rate “as long as the CPI is submitted,” but has the discretion to decide whether to grant
such an increase. Davis, 2009 WL 3923899, at *3. Although no official reporting of the CPI is
included in the attorney’s materials, all other necessary information was submitted. Additionally,
other courts have awarded fees at the same or nearly identical rate. See, e.g. Garver v. Astrue,
2011 WL 4852442, at *1 (D. Colo. 2011) (awarding fees at an hourly rate of $173.37); Stanley v.
Astrue, 2011 WL 1344416, at *2-3 (D. Colo. 2011) (awarding fees at an hourly rate of $175.27);
Cruz, 2011 WL 1157463, at *2, 6 (awarding fees at an hourly rate of $173.75). Thus, the court
determines that the requested fees are reasonable.
Accordingly, IT IS ORDERED that:
1.
Plaintiff’s “Opposed Motion for Attorney Fees Pursuant to the Equal Access to
Justice Act” (filed July 18, 2011) (doc. #24) is GRANTED.
2.
Plaintiff is awarded attorney fees pursuant to the EAJA in the amount of
$5,840.62, to be made payable to Plaintiff, Rebecca Miranda, and mailed to counsel of record.
Advisement to the Parties
Within fourteen days after service of a copy of a Magistrate Judge’s order, any party may
serve and file written objections to the order. Fed. R. Civ. P. 72(a). “A judge of the court may
reconsider any pretrial matter . . . where it has been shown that the magistrate judge’s order is
clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). See also Fed. R. Civ. P. 72(a)
(“The district judge in the case must consider timely objections and modify or set aside any part
of the order that is clearly erroneous or is contrary to law.”). Failure to make timely objections to
the Magistrate Judge’s order(s) may bar review by the District Judge and will result in a waiver
6
of the right to appeal. See Fed. R. Civ. P. 72(a) (“a party may not assign as error a defect in the
order not timely objected to”); S.E.C. v. Merrill Scott & Associates, Ltd., 600 F.3d 1262, 1269
(10th Cir. 2010) (failure to object to Magistrate Judge’s order “strips us of jurisdiction to review
the challenged order”) (quoting Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th Cir. 1997)
("[p]roperly filed objections resolved by the district court are a prerequisite to our review of a
magistrate judge's order under 28 U.S.C. § 636(b)(1)(A)")); Hill v. SmithKline Beecham Corp.,
393 F.3d 1111, 1114 (10th Cir. 2004) (“If the parties fail to make timely objection, they ‘waive[ ]
appellate review of both factual and legal questions.’”) (quoting Moore v. United States, 950
F.2d 656, 659 (10th Cir. 1991)).
DATED at Denver, Colorado, this 18th day of November, 2011.
BY THE COURT:
s/Craig B. Shaffer
United States Magistrate Judge
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?