Hudson v. Commissioner Social Security
Filing
43
OPINION AND ORDER. The Court GRANTS Plaintiff's Motion to Allow EAJA Fees and Expenses (doc. 39). The Commissioner, however, shall have ten (10) days from the date this Opinion and Order is entered either to stipulate or to file a motion challenging the reasonableness of the attorneys' fees amount sought by plaintiff. IT IS SO ORDERED. Signed on 12/29/2011 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Portland Division
JOSE ENRIQUE ARROYO HUDSON,
Plaintiff,
v.
MICHAEL ASTRUE,
Commissioner of Social
Security,
Defendant.
DAVID B. LOWRY
9900 S.W. Greenburg Road, Ste 130
Portland, OR 97223
(503) 245-6309
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
KATHRYN A. MILLER
Special Assistant United States Attorney
701 Fifth Avenue, Suite 2900 MiS 221A
Seattle, WA 98104-7075
(206) 615-2240
Attorneys for Defendant
1 - OPINION AND ORDER
3: 09-CV-1146-MA
OPINION AND ORDER
MARSH, Judge.
This matter is before the Court on plaintiff's Motion for
Attorneys Fees (doc. 39) in the amount of $5,508.12 under the
Equal Access to Justice Act (EAJA), 28 U.S.C. § 24l2(d)(1)(A).
The Commissioner opposes the motion, arguing that his
position in both the administrative proceedings and this
litigation was substantially justified.
For the following
reasons, the court disagrees.
DISCUSSION
On July 18, 2011, this court issued an Opinion and Order
remanding this case to the Commissioner to (1) further develop
the medical record as to plaintiff's psychological impairments,
and (2) obtain clarification from examining physician John H.
Ellison, M.D. as to whether plaintiff's abdominal adhesions are a
cause of plaintiff's alleged standing, walking, and sitting
limitations.
Upon further development of the record, the court ordered
the Commissioner to reevaluate whether plaintiff had the ability
to engage in substantial gainful activity and, if so, what
activity.
Under the Equal Access to Justice Act, a prevailing party is
entitled to fees and costs incurred in "proceedings for judicial
review of agency action, brought by or against the United States
2 - OPINION AND ORDER
· 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.
§
24l2(d)(l)(A).
The court concludes the Commissioner was not substantially
justified in finding plaintiff did not have severe psychological
impairments without further developing the medical evidence in
that regard.
The Administrative Law Judge found plaintiff had
psychological impairments related to anger, depression, and loss
of focus, but rejected plaintiff's testimony as to the severity
of his psychological impairments based on the lack of a treatment
history related to those impairments.
He also rejected the lay
evidence of plaintiff's mother corroborating the existence of
those impairments and plaintiff's resulting difficulty in paying
attention or following instructions without giving any germane
reason for doing so.
The court also concludes the ALJ was not substantially
justified in effectively ignoring Dr. Ellison's medical findings
without further clarification from the doctor regarding the basis
for his opinion that plaintiff had standing, walking, and sitting
limitations.
For each of these reasons, the court adheres to its ruling
that plaintiff is entitled to an award of attorneys' fees under
the EAJA.
3 - OPINION AND ORDER
The court, therefore, GRANTS plaintiff's Motion to Allow
EAJA Fees and Expenses (doc. 39).
The Commissioner, however,
shall have ten (10) days from the date this Opinion and Order is
entered either to stipulate to or file a motion challenging the
reasonableness of the attorneys' fees amount sought by plaintiff.
IT IS SO ORDERED.
DATED this
Z '!day
of December, 2011.
MALCOLM F. MARSH
United States District Judge
4 - OPINION AND ORDER
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