Ortiz v. Commissioner of Social Security
Filing
32
ORDER granting 28 Motion for Attorney Fees. Signed by Magistrate Judge Thomas B. Smith on 9/13/2013. (KHH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
MIGUEL A. ORTIZ,
Plaintiff,
v.
Case No: 6:11-cv-1835-Orl-TBS
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER
Pending before the Court is Plaintiff’s Amended Motion for Award of Attorney’s
Fees Pursuant to the Equal Access to Justice Act 28 U.S.C § 2412(d). (Doc. 28). The
Commissioner has filed a response in opposition (Doc. 29), and Plaintiff has filed a reply
to the Commissioner’s response (Doc. 31). Pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. §2412(d), Plaintiff requests an award of fees in the amount of
$5,462.51.
I.
Background
Plaintiff filed for disability insurance benefits and supplemental security income on
July 31, 2007, alleging disability beginning on January 1, 2005 due to diabetes and
problems with his back and legs. (Tr. 131, 134, 154, 162, 192). The Social Security
Administration denied Plaintiff’s application initially and on reconsideration. (Tr. 78-83,
85-88). At Plaintiff’s request, an Administrative Law Judge (“ALJ”) held a hearing to
address Plaintiff’s claims and then issued a decision finding Plaintiff not disabled. (Tr. 1729, 35-71). The ALJ found Plaintiff suffered from the following severe impairments:
degenerative disc disease, hypertension, diabetes and neuropathy. (Tr. 22). Despite
these impairments, the ALJ found that Plaintiff could perform light work as defined in 20
C.F.R. §§ 404.1567(b), 416.967(b), except that he should only occasionally climb stairs,
balance, stoop, kneel, crouch, or crawl; is not able to climb ropes, ladders, or scaffolds; is
limited to occasional overhead reaching; and must avoid concentrated exposure to
extreme cold and hazards such as machinery and heights. (Tr. 23). Based upon these
findings, the ALJ concluded that Plaintiff was not disabled. (Id. at 29). The Appeals
Council denied Plaintiff’s timely request for review. (Tr. 1-6). Accordingly, the ALJ’s
March 9, 2010 opinion was the final decision of the Commissioner.
On November 17, 2011, Plaintiff timely filed his action for judicial review. (Doc. 1).
The parties consented to the exercise of jurisdiction by a magistrate judge on February
24, 2012 (Doc. 14), and on February 27, 2012, the district judge entered an Order of
Reference referring the case to the undersigned (Doc. 16).
The parties filed their respective briefs (Docs. 20, 21), and, after considering the
merits of their positions, the Court ruled for Plaintiff. (Doc. 23). In reaching its decision,
the Court found that the ALJ had failed to assign any weight to Dr. Lavoie’s March 20,
2009 opinion that “[l]ittle can be done with [Plaintiff’s] cord myelomalacia.”1 (Tr. 485).
The Court reversed the Commissioner’s decision pursuant to sentence four of 42 U.S.C.
§ 405(g) and remanded the case to the Commissioner for additional proceedings
consistent with the Court’s decision.
On June 24, 2013 Plaintiff filed his first motion for attorney’s fees pursuant to the
EAJA. (Doc. 25). Although the motion complied with all of the requirements of the EAJA,
it did not comply with M.D. Fla. Local Rule 3.01(g), which requires the moving party to
Myelomalacia is the “morbid softening of the spinal cord.” Available at
http://medical-dictionary.thefreedictionary.com/myelomalacia.
1
-2-
confer with the non-moving party before filing a motion. The Court afforded ten days to
Plaintiff to supplement his motion for fees (Doc. 26), but Plaintiff did not do so.
Consequently, the Court denied Plaintiff’s motion without prejudice. On July 22, Plaintiff
filed his pending motion for fees, including a proper Local Rule 3.01(g) certification. (Doc.
28). The Commissioner filed her response shortly thereafter. (Doc. 29). On August 12,
2013, the Court issued an Order expressing its concern about the timeliness of Plaintiff’s
motion, and directing the parties to file memorandums addressing the issue. (Doc. 30).
Plaintiff filed a reply to the Commissioner’s response in which he discussed the timeliness
of his motion. (Doc. 31). The Commissioner did not file a paper and the time within to do
so has elapsed. (Docket).
II.
Timeliness
An amended pleading relates back to the original pleading when it “asserts a claim
. . . that arose out of the conduct, transaction, or occurrence set out— or attempted to be
set out — in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). 28 U.S.C. § 2412(d)(1)(B)
states:
A party seeking an award of fees and other expenses shall,
within thirty days of final judgment in the action, submit to the
court an application for fees and other expenses which shows
that the party is a prevailing party and is eligible to receive an
award under this subsection, and the amount sought,
including an itemized statement from any attorney or expert
witness representing or appearing in behalf of the party stating
the actual time expended and the rate at which fees and other
expenses were computed. The party shall also allege that the
position of the United States was not substantially justified.
The Eleventh Circuit has held that “absent prejudice to the government or
noncompliance with court orders for timely supplementation of the pleading requirements,
courts may permit supplementation of timely EAJA fee applications.” Singleton v. Apfel,
-3-
231 F.3d 853, 857 (11th Cir. 2000). Plaintiff timely filed his first motion for fees, which
complied with the substantive pleading requirements of the EAJA, 28 U.S.C. §
2412(d)(1)(B). (See Doc. 26). And, the Commissioner has not argued that she will suffer
prejudice if the Court considers the pending motion. (See Docket). Accordingly, the
Court finds that Plaintiff’s amended motion is timely because it arose out of the same
conduct, transaction, or occurrence set out in Plaintiff’s original motion and thus, relates
back pursuant to Federal Rule of Civil Procedure 15(c)(1)(B).
III.
Substantial Justification
The Court’s Order reversing the ALJ’s decision constituted a final order for
purposes of the EAJA. Shalala v. Schaefer, 509 U.S. 292, 296, 113 S.Ct. 2625, 125
L.Ed.2d 239 (1993). The EAJA provides that “a court shall award to a prevailing party
other than the United States” reasonable attorney’s fees and costs “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.” 28 U.S.C. §
2412(d)(1)(A). To recover an award under the EAJA a plaintiff must prove that: (1) the
claimant is a prevailing party in a non-tort suit involving the United States; (2) the
Government’s position was not substantially justified; (3) the claimant filed a timely
application for attorney’s fees; (4) the claimant had a net worth of less than $2 million
dollars at the time the complaint was filed; and (5) there are no special circumstances
which would make the award of fees unjust. 28 U.S.C. § 2412(d).
The word “substantially” as used in the EAJA means: “‘justified in substance or in
the main’ --- that is, justified to a degree that could satisfy a reasonable person.” Pierce v.
Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). In Pierce, the
-4-
Supreme Court explained that “a position can be justified even though it is not correct,
and we believe it can be substantially (i.e. for the most part) justified if a reasonable
person could think it correct, that is, if it has a reasonable basis in law and fact.” Id. at
565 n.2.
The phrase “position of the United States” includes the Commissioner’s position in
the underlying administrative proceedings as well as her position in this litigation.
Stratton v. Bowen, 827 F.2d 1447, 1449 n.2 (11th Cir. 1987). “The government’s success
or failure on the merits at each level may be evidence of whether its position was
substantially justified, but that success or failure alone is not determinative of the issue.”
Hadden v. Bowen, 851 F.2d 1266, 1267 (10th Cir. 1988). If the Court finds that some, but
not all of the Commissioner’s positions were substantially justified then the Court will
require the Commissioner to pay EAJA fees for the portions of her position that were not
substantially justified. United States v. Jones, 125 F.3d 1418, 1427 (11th Cir. 1997). But,
when the plaintiff’s claims are based upon a single set of facts and the issues are
intertwined, that plaintiff may recover fees for counsel’s work on the entire case. Id.
The burden is on the Commissioner to show by a preponderance of the evidence
that her position was substantially justified. White v. United States, 740 F.2d 836, 839
(11th Cir. 1984). To carry her burden, the Commissioner must establish that her position
had “a reasonable basis both in law and fact.” Myers v. Sullivan, 916 F.2d 659, 666 (11th
Cir. 1990). The Commissioner must also show that the Government’s position was
substantially justified throughout the Commissioner’s pre-litigation and post-litigation
positions. Id. at 666 n.5.
The Commissioner argues that her position was substantially justified because
Plaintiff did not submit myelomalacia as a basis for his alleged disability, or mention
-5-
myelomalacia or Dr. Lavoie at the administrative hearing. The Commissioner also
contends that, given the minimal evidence of myelomalacia and that Dr. Lavoie’s opinion
did not relate to Plaintiff’s limitations, the ALJ need not have mentioned Dr. Lavoie’s
opinion.
The law does not require the ALJ to specifically mention every piece of evidence in
his written opinion as long as his final decision allows the district court to conclude that
the ALJ considered the plaintiff’s medical condition as a whole. Hennes v. Comm’r Soc.
Sec., 130 F. App’x 343, 348 n.11 (11th Cir. 2005) (citing Dyer v. Barnhart, 395 F.3d 1206,
1211 (11th Cir. 2005)). However, the ALJ must specify the weight given to the opinions of
treating physicians or the reasons for giving them no weight. Winschel v. Comm’r of Soc.
Sec., 631 F.3d 1176, 1178-79 (11th Cir. 2011) (citing 20 C.F.R. §§ 404.1527(a)(2),
416.927(a)(2)); see also Sharfarz v. Bowen, 825 F.2d 278, 279-80 (11th Cir. 1987). The
failure to do so is reversible error. Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987).
The opinion issued by Dr. Lavoie is a medical opinion issued by a treating physician, and
the Commissioner does not argue otherwise. The law is plain that an ALJ must specify
on the record the weight given to a medical opinion. Here, the ALJ did not. As the ALJ is
required in every case to state with specificity the weight afforded to a treating physician’s
opinion, the Commissioner’s argument to the contrary does not have a reasonable basis
in law or fact and is not substantially justified.
IV.
Award
The schedule of hours attached to Plaintiff’s petition confirms the attorney’s
claimed hours and fee of $5,462.51. (Doc. 28-2). The Court finds that Plaintiff is the
prevailing party in this litigation and that the Commissioner’s position in the underlying
action was not substantially justified. Plaintiff asserts that his net worth at the time this
-6-
proceeding was filed was less than two million dollars and that he has assigned his EAJA
fees to his counsel. (Docs. 28 at 2 and 28-3). In light of the assignment, Plaintiff
requests that payment be made payable to him and delivered to his attorney unless he
owes a federal debt. If the U.S. Department of the Treasury determines that Plaintiff
does not owe a federal debt, the Government will accept Plaintiff’s assignment of EAJA
fees and pay fees directly to his attorney.
Pursuant to the provisions of the EAJA, Plaintiff’s petition for attorney’s fees (Doc.
31) is GRANTED. Plaintiff is awarded attorney’s fees in the amount of $5,462.51 to be
paid out of the judgment fund. Payment is authorized to Plaintiff’s counsel if the
Commissioner determines that Plaintiff does not owe a debt to the Government.
DONE and ORDERED in Orlando, Florida on September 13, 2013.
Copies furnished to Counsel of Record
-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?