Spitler et al v. Commissioner of Social Security
Filing
27
OPINION AND ORDER denying 22 Motion for attorney fees. Signed by Judge John E. Steele on 12/27/2011. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROXANNE SPITLER,
Plaintiff,
vs.
Case No.
2:10-cv-258-FtM-29DNF
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
___________________________________
OPINION AND ORDER
This matter comes before the Court on plaintiff’s Petition for
EAJA Fees (Doc. #22) filed on October 28, 2011.
The Commissioner
filed a Response (Doc. #23) on November 4, 2011, arguing that its
position was substantially justified and therefore the petition
should be rejected, or alternatively, that plaintiff’s claimed
hours should be reduced significantly.
Plaintiff filed a Reply
(Doc. #26) on December 2, 2011.
I.
The Equal Access to Justice Act (EAJA), Title 28 U.S.C. §
2412(d)(1)(A), provides in pertinent part 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 . . .
brought by or against the United States in any court having
jurisdiction of that action, unless the court finds that the
position of the United States was substantially justified or that
special circumstances
make
an
award
unjust.”
Such
fees and
expenses are payable to the litigant, not the attorney.
Ratliff, 130 S. Ct. 2521 (2010).
Astrue v.
To be entitled to EAJA fees and
expenses, the following five (5) conditions must be satisfied: (1)
Plaintiff must file a timely application for attorney fees; (2)
plaintiff must have a net worth must have been less than $2 million
dollars at the time the Complaint was filed; (3) plaintiff be the
prevailing party in a non-tort suit involving the United States;
(4)
the
position
substantially
of
the
justified;
United
and
(5)
States
must
not
there
must
be
have
no
been
special
circumstances which would make the award unjust. Commissioner, INS
v. Jean, 496 U.S. 154, 158 (1990).
In this case, the parties
dispute only whether the Commissioner’s position was substantially
justified.
“The standard for substantial justification is one of
reasonableness.
The government must show that its case had a
reasonable basis both in law and fact.”
Stratton v. Bowen, 827
F.2d 1447, 1449 (11th Cir. 1987)(citations omitted).
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
See also
“Thus, EAJA fees
are not available every time a claimant prevails - only when the
Commissioner’s position lacks ‘a reasonable basis in law and
fact.’”
Bergen v. Comm’r of Soc. Sec., 454 F.3d 1273, 1277 (11th
Cir. 2006)(citation omitted).
II.
On April 29, 2010, plaintiff filed a Complaint (Doc. #1)
seeking review of the Commissioner’s Decision denying her claim for
-2-
a period of disability, Disability Insurance Benefits, Widow’s
Insurance
Benefits,
and
Supplemental
Security
Income.
The
Complaint generically alleged that the Commissioner’s decision was
“not supported by substantial evidence and is based upon errors of
law.”
(Doc. #1, p. 3.)
Plaintiff’s Memorandum of Law (Doc. #12)
argued that the Administrative Law Judge’s (ALJ) failed to consider
and weigh Dr. Harrison’s psychological assessment; failed to follow
mental impairment evaluation procedures; and improperly considered
Dr.
Richards’
opinion
and
improperly
ignored
other
relevant
evidence which led to the improper conclusion that plaintiff could
perform the job of a hotel clerk. (Doc. #12, pp. 12-22.)
While
plaintiff argued that the ALJ “ignored some medical evidence” (doc.
#12, p. 18), she did not specifically include Dr. Melissa Zale’s
reports as part of this ignored medical evidence.
On June 28, 2011, the Magistrate Judge issued an initial
Report and Recommendation (Doc. #15).
In addressing the second
claim, the Report and Recommendation stated:
In making her claim for review of Dr. Harrison’s
psychological report, Claimant argues that, under
Sharfarz v. Bowen, the ALJ must expressly state the
weight he gave to each medical report and his reason for
doing so. 825 F.2d 278, 278-9 (11th Cir. 1987). While
Claimant does not raise the issue, the Court has
recognized that the same argument applies to the ALJ’s
failure to review and incorporate the medical reports of
Claimant’s primary care physician, Dr. Melissa Zale, M.D.
and the other reports submitted by her treating doctors
at Family Health Centers.
-3-
(Doc. #15, p. 22).
This was the first specific reference to Dr.
Zale. The Commissioner filed Objections (Doc. #16) which argued in
part that Dr. Zale’s reports were consistent with other evidence
and therefore did not warrant remand.
(Doc. #16, pp. 7-9.)
Plaintiff’s Response (Doc. #17) raised, for the first time, the
ALJ’s failure to consider Dr. Zale’s reports as a specific claim of
error.
(Doc. #17, pp. 8-9.)
On August 24, 2011, the magistrate
judge “concluded that the report and Recommendation does not
clearly articulate the recommendations in this case”, and vacated
the Report and Recommendation.
(Doc. #18.)
On the same day, the Magistrate Judge issued a new Report and
Recommendation (Doc. #19) finding that the ALJ erred by failing to
discuss Dr. Zale’s report, and therefore the ALJ failed to review
the medical evidence as a whole.
other error.
The Magistrate Judge found no
The magistrate judge therefore recommended that the
decision of the Commissioner be reversed and remanded pursuant to
sentence four of 42 U.S.C. § 405(g) for failing to consider the
treating physicians’ report from the Family Health Centers, and
that it otherwise be affirmed under sentence four of § 405(g).
No
objections were filed to the Report and Recommendation, which was
accepted and adopted by the district court (Doc. #20).
The
Decision of the commissioner was reversed and remanded pursuant to
sentence
four
to
consider
the
treating
physicians’
Judgment (Doc. #21) was entered on September 15, 2011.
-4-
report.
After a de novo review of the substantive issues, the Court
finds that the Commissioner has established that his positions,
including the positions related to the belatedly raised Dr. Zale
reports, were substantially justified under the standards set forth
above.
Accordingly, it is now
ORDERED:
Plaintiff’s Petition for EAJA Fees (Doc. #22) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
December, 2011.
Copies:
Counsel of record
-5-
27th
day of
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