Clark v. Commissioner of Social Security
Filing
39
OPINION AND ORDER granting 34 Motion for Attorney Fees except as to the paralegal fees. Attorney fees in the amount of $8,510.88 are hereby awarded to plaintiff and may be paid directly to counsel if the U.S. Department of Treasury determines that no federal debt is owed. The Clerk shall enter an amended judgment accordingly. Signed by Judge John E. Steele on 9/30/2019. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
AMANDA CHRISTINE CLARK,
Plaintiff,
v.
Case No:
COMMISSIONER
SECURITY,
OF
2:17-cv-501-FtM-29DNF
SOCIAL
Defendant.
OPINION AND ORDER
This matter comes before the Court on plaintiff's Petition
for EAJA Fees Pursuant to 28 U.S.C. 2312(d) (Doc. #34) filed on
June 6, 2019.
The Commissioner filed an Opposition (Doc. #35) on
June 24, 2019, and plaintiff filed a Reply (Doc. #38) on July 22,
2019, with leave of Court.
Plaintiff seeks an award of $8,510.88
in attorney fees and $12.00 in paralegal fees.
For the reasons
set forth below, plaintiff’s petition is granted.
I.
On March 8, 2019, the Court issued an Opinion and Order (Doc.
#31)
adopting
in
part
Recommendation (Doc. #25).
the
Magistrate
Judge’s
Report
and
At step five, the Magistrate Judge
found that a significant number of jobs existed in the national
economy:
The ALJ’s misstatement was harmless, though, as the
Court recommends that substantial evidence supports
the ALJ’s finding that Plaintiff could perform the
ticket taker job because 10,000 jobs in the
national economy for the ticket taker position is
a significant number of jobs.
See Brooks v.
Barnhart, 133 F. App’x 669, 671 (11th Cir. 2005)
(substantial evidence supported ALJ’s finding that
840 jobs in the national economy constituted
significant number of jobs); Rodriguez v. Comm’r of
Soc. Sec., No. 6:17-cv-1374-Orl-22GJK, 2018 WL
840129, at *6 (M.D. Fla. Jan. 25, 2018) (harmless
error where ALJ erred as to one job at step five
but made valid findings as to a different job);
Johnson v. Comm’r of Soc. Sec., No. 5:14-cv-141Oc-PRL, 2014 WL 12623026, at *5 (M.D. Fla. Sept. 9,
2014).
(Doc. #25, p. 23.)
conclusion
that
a
The undersigned disagreed with the ultimate
significant
number
of
jobs
existed
in
the
national economy:
Here, the ALJ erred as to plaintiff’s ability to
perform two of the three jobs, and made no findings
at all regarding the sufficiency of the number of
ticket taker jobs standing alone. The Court is
persuaded by Randazzo v. Berryhill, 725 F. App’x
446, 448 (9th Cir. 2017), which found harmless
error did not apply because “10,000 electrical
accessories assembler jobs found by the expert may
not amount to a significant number of jobs in the
national economy.” This is particularly so in this
case, where the ALJ seemed to take some comfort in
the availability of the two sedentary jobs which
were erroneously considered.
(Doc. #31, pp. 9-10.)
The undersigned affirmed in part the
Decision of the Commissioner of Social Security, and remanded to
make factual findings as to whether the number of ticket-taker
jobs available in the national economy constituted a significant
number within the meaning of the statute and regulation, and to
also clarify the weight given to Dr. Kelly’s opinion.
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II.
A prevailing party is entitled to fees, costs, and other
expenses “unless the court finds that the position of the United
States was substantially justified or that special circumstances
make an award unjust.”
28 U.S.C. § 2412(d)(1)(A).
In seeking an
award, plaintiff must show that she is a prevailing party with a
net worth that does not exceed $2 million, allege that the position
of the United States was not substantially justified, and submit
an application with an itemized statement as to the time expended
and the rate applied.
(2004)
(citing
28
Scarborough v. Principi, 541 U.S. 401, 408
U.S.C.
§
2412(d)(1)(B),
(d)(2)(B)).
The
Commissioner argues that relief should be denied because its
position was substantially justified, even if erroneous.
“Whether
or
not
the
position
of
the
United
States
was
substantially justified shall be determined on the basis of the
record (including the record with respect to the action or failure
to act by the agency upon which the civil action is based) which
is made in the civil action for which fees and other expenses are
sought.”
28 U.S.C. § 2412(d)(1)(B).
The United States Supreme
Court “have held that the term ‘substantially justified’ means
‘justified in substance or in the main’—that is, justified to a
degree that could satisfy a reasonable person.”
Comm'r, I.N.S.
v. Jean, 496 U.S. 154, 158 n.6 (1990) (quoting Pierce v. Underwood,
487 U.S. 552, 565-566 (1988)).
The Eleventh Circuit, as has the
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majority of court of appeals, defines ‘substantially justified’
as:
The government's position is substantially
justified under the EAJA when it is ‘justified
to a degree that would satisfy a reasonable
person’—i.e. when it has a reasonable basis in
both law and fact.” United States v. Douglas,
55 F.3d 584, at 588 (11th Cir. 1995) (quoting
Pierce, 487 U.S. at 565, 108 S. Ct. at 2550.
“The government bears the burden of showing
that
its
position
was
substantially
justified.” City of Brunswick, Ga. v. United
States, 849 F.2d 501, 504 (11th Cir. 1988).
United States v. Jones, 125 F.3d 1418, 1425 (11th Cir. 1997).
In this case, the Court found that “the ALJ erred as to
plaintiff’s ability to perform two of the three jobs, and made no
findings at all regarding the sufficiency of the number of ticket
taker jobs standing alone.”
(Doc. #31, p. 10.)
The Court found
that a remand was necessary for a factual finding as to whether
the ticket taker job standing alone constituted a significant
number of jobs in the national economy because the two sedentary
jobs were erroneously considered.
(Id.)
The Court also found
that the ALJ should clarify on remand whether marked limitation in
maintaining
attention
instructions.
is
consistent
with
carrying
out
simple
(Id., p. 15.)
The Commissioner argues that attorney fees should not be
assessed because its position was substantially justified.
The
Commissioner argues that the ALJ did not mischaracterize the
vocational expert’s testimony, but actually disagreed with the
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vocational expert, and the District Court relied on cases outside
of the Eleventh Circuit despite the fact that “Eleventh Circuit
has routinely” applied the harmless error test and has found that
as few as 840 is a significant number of jobs in the national
economy.
(Doc. #35, pp. 4-5.)
Having
reviewed
the
record,
the
Court
finds
that
the
Commissioner’s position was not substantially justified, and a
reasonable person would find that the Commissioner’s position did
not have a reasonable basis in law and fact.
The ALJ did not make
a finding on whether there were a significant number of jobs, and
the ALJ determined that plaintiff could do jobs that were outside
of the vocational expert’s testimony.
The Commissioner relies on
an unpublished case, Brooks v. Barnhart, 133 F. App'x 669 (11th
Cir. 2005), which is neither binding nor persuasive.
In Brooks,
the ALJ’s finding that 840 jobs constituted a significant number
of jobs in the national economy was found to be supported by
substantial
evidence
because
the
ALJ
made
the
determination after relying on the vocational expert.
independent
Brooks v.
Barnhart, 133 F. App'x 669, 671 (11th Cir. 2005) (noting that the
vocational expert’s determination is not binding).
Brooks is
differentiated from this case because in this case the ALJ erred
in his summation of what the vocational expert concluded and
therefore the Commissioner was not substantially justified.
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III.
As plaintiff is a prevailing party and the position of the
United
States
was
not
substantially
entitled to attorney’s fees and costs.
is
calculated
by
multiplying
the
plaintiff
is
A reasonable attorney fee
number
expended by the reasonable hourly rate.
U.S. 424, 433 (1983).
justified,
of
hours
reasonably
Hensley v. Eckerhart, 461
The party seeking an award of fees should
submit adequate documentation of hours and rates in support, or
the award may be reduced.
Id.
A “reasonable hourly rate” is “the
prevailing market rate in the relevant legal community for similar
services by lawyers of reasonably comparable skills, experience,
and reputation.”
Norman v. Housing Auth. of Montgomery, 836 F.2d
1292, 1299 (11th Cir. 1988).
The burden is on the fee applicant
“to produce satisfactory evidence” that the rate is in line with
those prevailing in the community.
Blum v. Stenson, 465 U.S. 886,
896 n.11 (1984).
Attorney Carol Avard spent 33.50 hours on the preparation of
the case, and attorney Mark Zakhvatayev spent 6.50 hours on the
case and 2.3 additional hours on the fee petition.
Counsel seek
a total of $8510.88 in attorney fees and $12 in paralegal fees.
The
Commissioner
objects
clerical” in nature.
to
the
paralegal
(Doc. #35, p. 1 n.2.)
fees
as
“clearly
The Court agrees that
the “filing of Objections to Report and Recommendation by CM/ECF”
is clerical in nature.
This amount will be denied.
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The Court
finds that the hourly rates and hours expended are otherwise
reasonable and due to be awarded.
Counsel attached an Attorney
Fee Contract for Social Security Benefits/SSI Fee Agreement –
Federal Court (Doc. #34-1) which includes an assignment of awarded
fees and costs to counsel.
The Court will award the fees to
plaintiff, and the fees may be paid directly to counsel if the
government determines that plaintiff does not owe a federal debt
pursuant to Astrue v. Ratliff, 560 U.S. 586, 594 (2010).
Accordingly, it is hereby
ORDERED:
1. Plaintiff's Petition for EAJA Fees Pursuant to 28 U.S.C.
2312(d) (Doc. #34) is GRANTED except as to the paralegal
fees.
2. Attorney fees in the amount of $8,510.88 are hereby awarded
to plaintiff, and may be paid directly to counsel if the
United States Department of Treasury determines that no
federal debt is owed.
3. The Clerk shall enter an amended judgment accordingly.
DONE and ORDERED at Fort Myers, Florida, this
of September, 2019.
Copies:
Counsel of Record
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30th
day
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