Gonzales v. Social Security Administration

Filing 37

MEMORANDUM OPINION AND ORDER by Magistrate Judge Stephan M. Vidmar GRANTING 33 Plaintiff's Motion for Attorney Fees under EAJA (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DAVID MICHAEL GONZALES,
Plaintiff,
v.

No. 16-cv-0045 SMV

NANCY A. BERRYHILL,1
Acting Commissioner of Social Security Administration,
Defendant.

MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff’s Motion for Attorney Fees Pursuant to
the Equal Access to Justice Act, with Memorandum in Support [Doc. 33] (“Motion”), filed on
November 15, 2017.

The Commissioner responded on November 17, 2017.

Plaintiff replied on November 30, 2017.

[Doc. 35].

[Doc. 34].

The parties have consented to the

undersigned’s entering final judgment in this case. [Doc. 9]. Plaintiff moves the Court for an
award of $5,052.30 in attorney fees. [Doc. 33] at 1. Having reviewed the record, the briefing,
and the relevant law, the Court finds that the Motion is well-taken and should be granted.
Plaintiff will be awarded $5,052.30 in attorney fees.
Background
Plaintiff’s claim for supplemental security income was denied by Defendant, and he
timely filed suit in this Court. At step five the Administrative Law Judge (“ALJ”) found that,
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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as
the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of
section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

based on Plaintiff’s residual functional capacity (“RFC”), age, education, and work experience
and the testimony of the vocational expert (“VE”), Plaintiff could perform other work.
Tr. 44−45. Specifically, she found that Plaintiff could perform the functions of “presser, hand”
(Dictionary of Occupational Titles (“DOT”) number 363.684-018); “blending tank tender,
helper” (DOT number 520.687-066); and counter clerk (photofinishing) (DOT number
249.366-010). As was required to ultimately find Plaintiff not disabled, the ALJ found that
these other jobs existed in “significant numbers in the national economy.” Id. Tr. 44–45.
In granting Plaintiff’s motion and remanding the case, the Court determined that these
step-five findings were not supported by substantial evidence. [Doc. 31] at 13–18. As to the
first job, hand presser, the parties agreed its requirements exceeded Plaintiff’s RFC assessment.
Id. at 14.

As to the second job, blending tank tender helper, the Court found that its

requirements exceeded Plaintiff’s RFC.

As to the third and final job, counter clerk

(photofinishing), the Court found that there was not substantial evidence to support the ALJ’s
finding it existed in significant numbers in the national economy. Lastly, the Court declined
Defendant’s invitation to supply another job, bakery helper, because it simply had not been
identified by the ALJ. Id. at 15–16 at n.5.
Plaintiff now requests an award of attorney fees in the amount of $5,052.30 under the
Equal Access to Justice Act (“EAJA”). [Doc. 33] at 1. The Commissioner opposes any award
because, she argues, her position was substantially justified.

[Doc. 34].

She makes no

argument about the first two jobs, hand presser and blending tank tender helper. Instead, she

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focuses solely on the third job, counter clerk (photofinishing) and the job that does not appear
anywhere in the ALJ’s decision, bakery helper.
Standard
EAJA provides for an award of attorney fees to a plaintiff when: (1) he is a prevailing
party, (2) the position of the United States was not substantially justified, and (3) no special
circumstances would make the award unjust. 28 U.S.C. § 2412(d)(1)(A); Hackett v. Barnhart,
475 F.3d 1166, 1172 (10th Cir. 2007). Here, the parties do not dispute that Plaintiff is a
prevailing party or that no special circumstances would make the award unjust. Instead, they
disagree about whether the Commissioner’s position was substantially justified. [Docs. 33, 34,
35].
The Commissioner bears the burden of showing that her position was substantially
justified. Hackett, 475 F.3d at 1172. Her “position” collectively refers to her positions at the
administrative level and before the federal courts in a given case. 28 U.S.C. § 2412(d)(2)(D).
EAJA fees generally should be awarded if the ALJ’s reasons for denying benefits were
unreasonable, “even if the government [subsequently] advanced a reasonable litigation
position.” Hackett, 475 F.3d at 1174 (internal quotation marks omitted).
“The test for substantial justification in this circuit is one of reasonableness in law and
fact.” Id. at 1172 (quoting Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995)). Substantial
justification is “satisfied if there is a genuine dispute or if reasonable people could differ as to
the appropriateness of the contested action.” Pierce v. Underwood, 487 U.S. 552, 565 (1988)
(internal quotation marks, citations, and brackets omitted). A district court’s remand order does
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not mean, ipso facto, that the Commissioner’s position was not substantially justified; that is,
her “position can be justified even though it is not correct.” Hackett, 475 F.3d at 1172 (quoting
Pierce, 487 U.S. at 566).
Similarly, a district court’s order affirming a final decision by the Commissioner does
not itself mean that the Commissioner’s position was substantially justified. Gatson v. Bowen,
854 F.2d 379, 381 n.1 (10th Cir. 1988). For example, when the agency applies the wrong legal
standard, the Commissioner “[cannot] show that h[er] position was substantially justified, either
in making the initial legal error or in arguing in the ensuing litigation that there was no error.”
Chester v. Apfel, 1 F. App’x 792, 795 (10th Cir. 2001); see Gatson, 854 F.2d at 380–81, 381 n.1
(holding that the Commissioner’s position could not be substantially justified where the agency
applied an outdated legal standard—despite the district court’s initial affirmance).
Defendant’s arguments regarding the
counter clerk (photofinishing) job were not substantially justified.
At the hearing, the VE initially testified that there were 400,000 counter clerk jobs in the
national economy. See Tr. 73. However, on cross examination, the VE, Mr. Griner, admitted
the number was unreliable:
Q:
Okay and with regards to these jobs, Mr. Griner, the
counter clerk, the bakery worker, and the blending tank tender
helper, those jobs don’t correspond to that specific title that for
example, the 400,000 to the blending tank—tank tender helper??
A:
My favorite job. There again, it, it does not and there is no
system of numbering that does correlate exactly to the—each
DOT.

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Q:
So you can’t reliably say how many bakery worker jobs
there are nationally, or counter clerk jobs there are nationally?
A:

No.

ATTY: Okay, All right, Judge that’s all the questions I have.
Tr. 76 (emphases added). There was no further questioning on this subject.
In the merits briefing, Plaintiff argued that the VE’s testimony did not constitute
substantial evidence to support the ALJ’s finding of 400,000 counter clerk jobs in the national
economy. [Doc. 20] at 24–26. Plaintiff’s argument was based on the VE’s admission that the
number was unreliable. Id.
Defendant responded that an ALJ’s entitlement to rely on VE testimony was
well-established. [Doc. 24] at 23. Further, Defendant argued that the ALJ was not required “to
determine an exact number of jobs with scientific precision[.]” Id. She argued for affirmance
because Plaintiff had given no reason to doubt that there were “significant numbers” of counter
clerk jobs in the national economy. Id. She argued that this was just “common sense[.]” Id.
The Court agreed with Plaintiff. [Doc. 31] at 15–18. In determining whether work
exists in “significant numbers,” an ALJ can consider many criteria, including but not limited to:
“the level of claimant’s disability; the reliability of the vocational expert’s testimony; the
distance claimant is capable of travelling to engage in the assigned work; the isolated nature of
the jobs; the types and availability of such work, and so on.” Id. at 17–18 (quoting Trimiar v.
Sullivan, 966 F.2d 1326, 1330 (10th Cir. 1992)).

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Based on the VE’s admission that the 400,000 number was unreliable, the lack of further
questioning on the subject, and the complete lack of any discussion in the ALJ’s decision to
support the number, the Court found that there was not substantial evidence to support the
ALJ’s finding that the job of counter clerk existed in significant numbers in the national
economy. [Doc. 31] at 16–18. Further, the Court disagreed that substantial evidence to support
the ALJ’s finding could be inferred based upon common sense. [Doc. 31] at 17 n.6.
Defendant now argues that her position was substantially justified. She argues that her
position was reasonable because the VE testified that there were 400,000 counter clerk jobs in
the national economy. [Doc. 34] at 4. However, she completely ignores the fact that the VE
himself admitted that the number was unreliable.

See id.

Beyond the VE’s admittedly

unreliable testimony, Defendant points to no other evidence that could support the ALJ’s
determination that the job of counter clerk (photofinishing) exists in significant numbers in the
national economy. Id. That is because there is no such evidence. The ALJ relied solely upon
the VE’s testimony, and the VE conceded that his testimony was unreliable.
In an apparent attempt to rehabilitate the VE’s testimony (and the ALJ’s reliance upon
it), Defendant argues that VEs are not required to “produce detailed job statistics specific to
DOT-coded occupations.” Id. at 4–5. She bases this argument on a case from the Fourth
Circuit, Guiton v. Colvin, 546 F. App’x 137, 142-43 (4th Cir. 2013). In Guiton, the Fourth
Circuit Court of Appeals held that an ALJ could rely on a VE’s testimony regarding the number
of jobs that existed in the national economy where that testimony was based on the

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Occupational Employment Quarterly (“OEQ”),2 even though the OEQ did not precisely
correspond to the DOT. 546 F. App’x at 142–43. But there is no suggestion in the record that
the VE in this case was relying on the OEQ for his job numbers. See Tr. 71–76 (transcript of
VE’s testimony). The VE never explained how he arrived at his figures, and no one asked him
to do so. See id. The issue is not whether the OEQ is as reliable as the DOT. The issue is
whether the ALJ may base a finding on unreliable testimony. The ALJ relied exclusively on the
VE’s testimony for her finding on the number of jobs. Tr. 45. The VE admitted that his
testimony on the number of jobs was unreliable.

Defendant fails to show that she was

substantially justified in defending this aspect of the ALJ’s decision.3
Defendant was not substantially justified
in her arguments regarding the bakery worker job.
In the Commissioner’s final decision, the ALJ found that Plaintiff could perform other
work at step five. Tr. 45. In so doing, she identified three jobs—and only three. Nevertheless,
Defendant argued in her merits briefing that the Court should consider a fourth: bakery worker.

2

The OEQ is “a commercial publication that employs government data to provide statistics regarding the number
of available jobs by census-coded occupational category.” Guiton, 546 F. App’x at 140.
3

Defendant also cites to Hall v. Bowen, 837 F.2d 272, 275 (6th Cir. 1988), but she does not discuss the case or
explain in any way how it supports her position. In Hall, the Sixth Circuit Court of Appeals clarified that the
number of jobs constituting “significant numbers” is not determined solely by its percentage of the total number of
jobs in a geographic area. Rather:
A judge should consider many criteria in determining whether work exists in significant
numbers, some of which might include: the level of claimant’s disability; the reliability of the
vocational expert’s testimony; the reliability of the claimant's testimony; the distance claimant is
capable of travelling to engage in the assigned work; the isolated nature of the jobs; the types and
availability of such work, and so on.
837 F.2d at 275. Hall does not change this Court’s analysis.

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Defendant argued it was omitted from the ALJ’s decision based on a “scrivener’s error.”
[Doc. 24] at 21–22 (citing Poppa v. Astrue, 569 F.3d 1167, 1172 n.5 (10th Cir. 2009)).
The Court was not persuaded. [Doc. 31] at 15–16 n.5. The Court looked to Black’s
Law Dictionary, which likened “scrivener’s error” to “clerical error,” defining them both as
“[a]n error resulting from a minor mistake or inadvertence, esp. in writing or copying something
on the record, and not from judicial reasoning or determination.” (8th ed. 2004). In Poppa, the
Tenth Circuit mentioned in a footnote that an ALJ had incorrectly stated that certain surgeries
occurred in 2004, when they actually had occurred in 2005. The court found that this was a
scrivener’s error and “did not affect the outcome of the case.” 569 F.3d at 1172 n.5. Based on
these authorities, this Court was not persuaded that the absence of bakery worker from the
ALJ’s step-five findings was a scrivener’s error. [Doc. 31] at 15–16 n.5. Rather, it was a
judicial determination critical to the outcome of the case. Id.
In defending her position, Defendant argues that the VE testified that a hypothetical
individual with Plaintiff’s vocational profile and RFC could perform the duties of bakery
worker. [Doc. 34] at 5 (citing Tr. 73). Defendant argues that the “Tenth Circuit has found, in
similar circumstances, that an ALJ’s articulation deficiency did not warrant remand.” Id. (citing
Berna v. Chater, 101 F.3d 631, 634 (10th Cir. 1996); Wilkerson v. Chater, 106 F.3d 414, 1997
WL 26563, at *4 (10th Cir. Jan. 24, 1997) (Table)). These cases do not support Defendant’s
position. These cases were affirmed based on waiver. Berna, 101 F.3d at 633–34; Wilkerson,
106 F.3d 414, 1997 WL 26563, at *4. In each case, the plaintiff failed to raise a certain

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argument, and therefore, the court held that the argument was waived.4 These cases do not
stand for the proposition that a court may supply a step-five finding post hoc to save an ALJ’s
decision. In fact, to do so “would require [this Court] to overstep [its] institutional role and
usurp essential functions committed in the first instance to the administrative process.” Allen v.
Barnhart, 357 F.3d 1140, 1142 (10th Cir. 2004). The Commissioner’s position—in asking the
Court to supply the job of bakery worker post hoc, in order to save the ALJ’s decision—was not
substantially justified.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiff’s
Motion for Attorney Fees Pursuant to the Equal Access to Justice Act [Doc. 33] is GRANTED,
and Plaintiff David Michael Gonzales is authorized to receive $5,052.30 for payment to his
attorney for services before this Court as permitted by the Equal Access to Justice Act, 28
U.S.C. § 2412, and in accordance with Manning v. Astrue, 510 F.3d 1246, 1255 (10th Cir.
2007).
IT IS FURTHER ORDERED that if Plaintiff’s counsel is ultimately granted attorney
fees pursuant to 42 U.S.C. § 406(b) of the Social Security Act, counsel shall refund the smaller
4

The Court acknowledges that in each case, the issue waived was a challenge to step-five findings supplied by a
district court. Nevertheless, the cases turned—not on whether a court may supply missing findings—but rather on
the plaintiff’s waiver of any challenge to the court’s supplying the missing finding. Berna, 101 F.3d at 633–34;
Wilkerson, 106 F.3d 414, 1997 WL 26563, at *4.
What is more, in Berna, the court acknowledged that, in fact, the ALJ’s decision itself contained sufficient
findings to support the step-five determination supplied by the district court. 101 F.3d at 634 (“[A]lthough the
administrative determination stopped short of step five, subsidiary findings necessary for an alternative disposition
at that stage were included in the body of the ALJ’s decision, which recited the [VE]’s opinion—given in response
to a hypothetical inquiry the substance of which has not been questioned—‘that there were a substantial numbers of
other jobs in the regional and national economy which the claimant could perform.’”) (brackets omitted). Of
course, the case at bar is different. The ALJ’s decision here does not include any reference to the VE’s testimony
about the job of bakery worker. Tr. 44–45. Nor is there anything contained in the ALJ’s decision itself that could
be interpreted as findings regarding the job of bakery worker. Id.

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award to Plaintiff pursuant to Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (“Congress
harmonized fees payable by the Government under EAJA with fees payable under § 406(b) out
of the claimant’s past-due Social Security benefits in this manner: Fee awards may be made
under both prescriptions, but the claimant’s attorney must refun[d] to the claimant the amount
of the smaller fee.”) (internal quotation marks omitted).
IT IS SO ORDERED.

______________________________
STEPHAN M. VIDMAR
United States Magistrate Judge
Presiding by Consent

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