Rivera-Ramos v. Commissioner of Social Security

Filing 25

OPINION AND ORDER granting 22 Motion for Attorney Fees. Signed by Judge Jay A Garcia-Gregory on 7/05/2012.(ASJ) Modified on 7/6/2012 to add text (ab).

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

JOSÉ A. RIVERA RAMOS,
Plaintiff,
CIVIL NO. 10-1220(JAG)
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

OPINION AND ORDER
GARCÍA-GREGORY, D.J.
Pending

before

the

Court

is

José

A.

Rivera

Ramos’s

(“Plaintiff”) motion for attorney’s fees pursuant to the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. (Docket No.
22).

For

the

reasons

outlined

below,

the

motion

is

hereby

GRANTED.

BACKGROUND
On March 9th, 2010, Plaintiff filed a complaint pursuant to
section 205(g) of the Social Security Act (“SSA”), 42 U.S.C.
405(g), seeking judicial review of the Commissioner of Social
Security’s

(“Commissioner”)

determination

that

he

is

not

disabled under sections 216(i) and 223 of the SSA, 42 U.S.C. §§
416(i), 423. (Docket No. 2, p. 1). The Court referred the matter
to Magistrate Judge Bruce J. McGiverin. (Docket No. 13, 16). The

CIVIL NO. 10-1220(JAG)

2

Court adopted the Magistrate Judge’s Report and Recommendation,
vacated

the

Commissioner’s

decision

denying

benefits,

and

remanded the case to the agency for further proceedings. (Docket
No. 20, p. 2). More specifically, the Court remanded for the
taking

of

testimony

from

a

vocational

expert

regarding

the

impact of Plaintiff’s non-exertional physical limitations on the
occupational base for medium work. (Id.). A final judgment was
entered on April 4, 2011, pursuant to the Court’s Memorandum and
Order. (Docket No. 21). Plaintiff prays that the Court award him
attorney’s fees in the amount of $4,232.46 for the district
court proceedings. (Docket No. 22, p. 3). He contends he is
entitled to such an award pursuant to the EAJA, 28 U.S.C. §
2412(d). (Docket No. 22-2, p. 1). The Commissioner has not filed
an opposition to Plaintiff’s request.

DISCUSSION
The EAJA provides in relevant part:
[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

(other

than

cases

sounding in tort), including proceedings for judicial
review of agency action, brought by or against the
United States in any court having jurisdiction of that
action, unless the court finds that the position of
-2-

CIVIL NO. 10-1220(JAG)

3

the United States was substantially justified or that
special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A). Plaintiff maintains that he is a
prevailing party within the meaning of the above-quoted section
of

the

EAJA,

28

U.S.C

§

2412.

(Docket

No.

22,

p.

2).

Furthermore, he asserts that the position of the Commissioner
was not substantially justified. (Id.).
1.

Prevailing Party Status

A party requesting attorney’s fees pursuant to the EAJA
must meet the threshold requirement that he be a “prevailing
party.” 28 U.S.C. § 2412(d)(1)(A). In Buckhannon Board & Care
Home, Inc. v. W. Va. Dep’t of Health & Human Res., the Supreme
Court established that a party has prevailed when there is both
(1) a “change in the legal relationship of the parties” and (2)
a “judicial imprimatur on the change.”1 532 U.S. 598, 605 (2001);
see

also

Smith,

401

F.3d

at

22

(holding

that

a

settlement

agreement entered into voluntarily lacked sufficient judicial
imprimatur).

In

other

words,

the

alteration

of

the

parties’

relationship must be “judicially sanctioned….” Buckhannon, 532

1

Although this case involved the Federal Housing Amendments Act
of 1988 and the Americans with Disabilities Act of 1990, the
reasoning applies “generally to all fee-shifting statutes that
use the prevailing party terminology.” Aronov v. Napolitano, 562
F.3d 84, 89 (1st Cir. 2009) (internal quotation marks omitted)
(quoting Smith v. Fitchburg Pub. Sch., 401 F.3d 16, 22 n. 8 (1st
Cir. 2005)).
-3-

CIVIL NO. 10-1220(JAG)

4

U.S. at 605. The Supreme Court described two situations that
meet the judicial imprimatur requirement. Id. In a case in which
the party has “receive[d] at least some relief on the merits of
his

claim,”

the

second

prong

is

satisfied.

Id.

(internal

quotation marks omitted) (quoting Hanrahan v. Hampton, 446 U.S.
754,

757

(1980)).

Similarly,

when

there

is

a

“settlement

agreement enforced through a consent decree,” the change in the
relationship counts as judicially sanctioned. Buckhannon, 532
U.S. at 605; see also Hutchinson v. Patrick, 636 F.3d 1, 10 (1st
Cir. 2011); Aronov, 562 F.3d at 88-89 (holding that the order
remanding

applicant's

case

did

imprimatur

requirement

because

it

not

satisfy

merely

the

recognized

judicial
what

the

government had already voluntarily agreed to do).
Section 205(g) of the SSA, 42 U.S.C. 405(g), authorizes
district courts to remand a final decision of the Commissioner
in one of two ways: pursuant to the fourth sentence or under the
sixth sentence of that section.2 Sullivan v. Finkelstein, 496

2

42 U.S.C. 405(g) reads:
Judicial review
Any individual, after any final decision of the Commissioner of
Social Security made after a hearing to which he was a party,
irrespective of the amount in controversy, may obtain a review
of such decision by a civil action commenced within sixty days
after the mailing to him of notice of such decision or within
such further time as the Commissioner of Social Security may
allow. Such action shall be brought in the district court of the
United States for the judicial district in which the plaintiff
resides, or has his principal place of business, or, if he does
-4-

CIVIL NO. 10-1220(JAG)

5

U.S. 617, 625 (1990); see also Melkonyan v. Sullivan, 501 U.S.
89, 100 (1991); Seavey v. Barnhart, 276 F.3d 1, 8 (1st Cir.
2001). The fourth sentence states in relevant part that “[t]he
not reside or have his principal place of business within any
such judicial district, in the United States District Court for
the District of Columbia. As part of the Commissioner's answer
the Commissioner of Social Security shall file a certified copy
of the transcript of the record including the evidence upon
which the findings and decision complained of are based. The
court shall have power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing. The
findings of the Commissioner of Social Security as to any fact,
if supported by substantial evidence, shall be conclusive, and
where a claim has been denied by the Commissioner of Social
Security or a decision is rendered under subsection (b) of this
section which is adverse to an individual who was a party to the
hearing before the Commissioner of Social Security, because of
failure of the claimant or such individual to submit proof in
conformity with any regulation prescribed under subsection (a)
of this section, the court shall review only the question of
conformity with such regulations and the validity of such
regulations. The court may, on motion of the Commissioner of
Social
Security
made
for
good
cause
shown
before
the
Commissioner files the Commissioner's answer, remand the case to
the Commissioner of Social Security for further action by the
Commissioner of Social Security, and it may at any time order
additional evidence to be taken before the Commissioner of
Social Security, but only upon a showing that there is new
evidence which is material and that there is good cause for the
failure to incorporate such evidence into the record in a prior
proceeding; and the Commissioner of Social Security shall, after
the case is remanded, and after hearing such additional evidence
if so ordered, modify or affirm the Commissioner's findings of
fact or the Commissioner's decision, or both, and shall file
with the court any such additional and modified findings of fact
and decision, and, in any case in which the Commissioner has not
made a decision fully favorable to the individual, a transcript
of the additional record and testimony upon which the
Commissioner's action in modifying or affirming was based. Such
additional or modified findings of fact and decision shall be
reviewable only to the extent provided for review of the
original findings of fact and decision.
-5-

CIVIL NO. 10-1220(JAG)
court

shall

have

6

power

to

enter…

a

judgment

affirming,

modifying, or reversing the decision of the Commissioner [],
with or without remanding the cause for a rehearing.” 42 U.S.C.
405(g). The Supreme Court concluded that, “although the fourth
sentence clearly foresees the possibility that a district court
may

remand

a

cause

nonetheless

such

terminology

of

to

a
§

the

[Commissioner]

remand

order

405(g).”

is

a

Finkelstein,

for

rehearing

‘judgment’
496

U.S.

in
at

[],
the
625.

Judgments are final though reviewable as in other civil actions.
Id. (citing 42 U.S.C. 405(g)).
Sentence

six,

on

the

other

hand,

provides

in

pertinent

part:
The court may, on motion of the Commissioner [] made
for good cause shown before the Commissioner files the
Commissioner's

answer,

remand

the

case

to

the

Commissioner [] for further action… and it may at any
time order additional evidence to be taken before the
Commissioner [], but only upon a showing that there is
new evidence which is material and that there is good
cause

for

the

failure

to

incorporate

such

evidence

into the record in a prior proceeding.
42 U.S.C. 405(g). Under sentence six, the district court retains
jurisdiction over the case and “contemplates entering a final
-6-

CIVIL NO. 10-1220(JAG)
judgment

following

7
the

completion

of

administrative

proceedings….” Melkonyan, 501 U.S. at 97.
In Shalala v. Schaefer the Supreme Court held that, in the
case of sentence-four remand orders, the period for filing a
request of fees pursuant to the EAJA begins to run as soon as
that judgment is no longer appealable. 509 U.S. 292, 298 (1993).
Accordingly,

the

Court

concluded

that

“a

party

who

wins

a

sentence-four remand order is a prevailing party,” meeting the
requirement that he receive “some of the benefit… sought in
bringing suit.” Id. at 302 (internal quotation marks omitted)
(quoting Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist.,
489 U.S. 782, 791-92 (1989). See also Santiago-Aybar v. Comm'r
of Soc. Sec., 545 F. Supp. 2d 231, 236 (D.P.R. 2008).
Although in this case the Court did not explicitly enter
its judgment pursuant to either sentence four or sentence six of
section 205(g) of the SSA, 42 U.S.C. 405(g), the remand order
meets the requirements of sentence four only. The Court did not
retain jurisdiction over the case, effectively “terminat[ing]
the

[district

court]

civil

action

challenging

the

[Commissioner’s] final determination that [Plaintiff] was not
entitled

to

benefits,

[and]

set[ting]

aside

that

determination….” Finkelstein, 496 U.S. at 625. Furthermore, the
Commissioner did not move to remand the case before filing his

-7-

CIVIL NO. 10-1220(JAG)

8

answer. (Docket No. 8). Rather, the Court adopted the Magistrate
Judge’s Report and Recommendation. (Docket Nos. 20-21). Nor was
there a showing of good cause “for the failure to incorporate
[material] evidence into the record in [the] prior proceeding”
pursuant to the sixth sentence of 42 U.S.C. 405(g). (Docket No.
8). Therefore, we agree with Plaintiff’s suggestion that the
remand order in this case was a sentence-four remand. (Docket
No. 22, p. 2). Under Schaefer, the Court holds that Plaintiff
has prevailing party status within the meaning of the EAJA, 28
U.S.C. § 2412(d)(1)(A). 509 U.S. at 302.
2.
A

Substantially Justified Government Action
claimant

is

entitled

to

an

award

of

attorney’s

fees

“unless the court finds that the position of the United States
was substantially justified….” 28 U.S.C. § 2412(d)(1)(A). For an
action

of

the

government

to

be

substantially

justified,

“it

[must] ha[ve] a reasonable basis in law and fact.” Aronov, 562
F.3d at 94 (citing Pierce v. Underwood, 487 U.S. 552, 566 n. 2
(1988)). That is, “the test is whether a reasonable person could
think

the

agency

position

is

correct.”

Id.

Importantly,

the

burden falls on the government to show that its actions were
substantially justified within the meaning of the EAJA. Schock
v. United States, 254 F.3d 1, 5 (1st Cir. 2001).

-8-

CIVIL NO. 10-1220(JAG)

9

In Saysana v. Gillen, the First Circuit listed some “rules
of analysis” to help with this inquiry. 614 F.3d 1, 5 (1st Cir.
2010) (citing Schock, 254 F.3d at 5). One such rule is that
courts

“must

examine

‘the

actual

merits

of

the

government’s

litigation position as to both the facts and the law.’” Saysana,
614 F.3d at 5 (quoting Pierce, 487 U.S. at 568-69). Furthermore,
“even if a court ultimately determines the agency’s reading of
the law was not correct,” the government’s conduct can qualify
as

substantially

justified.

Saysana,

614

F.3d

at

5

(citing

Aronov, 562 F.3d at 94 (citing Pierce, 487 U.S. at 566 n. 2)).
Finally, with regard to defining the scope of the position of
the United States, the Supreme Court has said that “[w]hile the
parties’ postures on individual matters may be more or less
justified, the EAJA… favors treating a case as an inclusive
whole, rather than as atomized line-items.” Saysana, 614 F.3d at
5 (citing Comm'r, I.N.S. v. Jean, 496 U.S. 154, 161–62 (1990)).
Because the burden to show substantial justification falls
on the government, and the burden was not met, the Court finds
that

the

Commissioner’s

position

was

not

substantially

justified. In his Report and Recommendation, which was adopted
by the Court, the Magistrate Judge found that the Administrative
Law Judge (“ALJ”) “was not justified in finding that [Plaintiff]
could

do

a

full

range

of

medium

-9-

work

despite

[his]

non-

CIVIL NO. 10-1220(JAG)

10

exertional physical restrictions.” (Docket No. 16, p. 21; Docket
No. 20). More specifically, the ALJ did not consider whether
Plaintiff’s restrictions with regard to frequently stooping and
crouching affect the medium work occupational base. (Docket No.
16, p. 20). Hence, the Magistrate Judge recommended that the
case

be

remanded

for

the

taking

of

live

vocational

expert

testimony on this matter. (Id., p. 21). Nevertheless, that the
ALJ was incorrect in making this particular determination does
not mean that the government’s position was not substantially
justified. Saysana, 614 F.3d at 5. Rather, what settles the
inquiry is the Commissioner’s failure to carry his burden to
show that his actions were substantially justified within the
meaning of the EAJA. Schock, 254 F.3d at 5. To begin with, the
Commissioner

did

Plaintiff’s

not

Motion

file

for

a

memorandum

Attorney’s

Fees.

in

opposition

(Docket

No.

to
22).

Secondly, in the district court proceedings reviewing the denial
of benefits, the Commissioner also failed to file a memorandum
of law in support of his answer to Plaintiff’s complaint, even
after being granted an extension of time by the Court. (Docket
Nos. 12, 18-19). Lastly, the Commissioner never filed objections
to

the

Magistrate

Judge’s

Report

and

Recommendation.

(Id.).

Because the Commissioner failed to respond to Plaintiff’s Motion
for

Attorney’s

Fees,

he

did

not

satisfy

his

burden

to

show

substantial justification. Therefore, the Court finds that the
-10-

CIVIL NO. 10-1220(JAG)

11

Commissioner’s position was not substantially justified in this
case. Schock, 254 F.3d at 5.
3.

Amount of Fees

With regard to the computation of fees, the EAJA states in
relevant part:
“[F]ees

and

other

expenses”

includes…

reasonable

attorney fees (The amount of fees awarded under this
subsection shall be based upon prevailing market rates
for the kind and quality of the services furnished,
except that… attorney fees shall not be awarded in
excess of $125 per hour unless the court determines
that an increase in the cost of living or a special
factor, such as the limited availability of qualified
attorneys for the proceedings involved, justifies a
higher fee.).
28 U.S.C.A. § 2412(d)(2)(A). See also Gisbrecht v. Barnhart, 535
U.S. 789, 796 (2002). Although generally fees are not to exceed
the rate of $125 per hour, courts have authority to determine
that an increase is warranted, based on the cost of living or
another special factor. See Sierra Club v. Sec’y of Army, 820
F.2d 513, 523 (1st Cir. 1987); see also Santiago-Aybar, 545 F.
Supp. 2d at 237 (awarding higher attorney’s fees in view of the
rate of inflation). Furthermore, a prevailing party can recover
-11-

CIVIL NO. 10-1220(JAG)
fees

related

to

the

12
attorney’s

work

on

the

fee

application

itself. McDonald v. Sec’y of Health & Human Servs., 884 F.2d
1468, 1480-81 (1st Cir. 1989).
Plaintiff here requests that the $125 per hour limit be
raised as follows: for work performed during the year 2010,
Plaintiff requests attorney’s fees at the rates of $178.75 for
core legal work, $133.25 for intermediate legal work, and $89.00
for non-core legal work. (Docket No. 22-2, p. 9). Likewise, for
work

performed

during

the

year

2011,

Plaintiff

requests

attorney’s fees at the rates of $181.75 for core legal work,
$135.50 for intermediate legal work, and $90.50 for non-core
legal work. (Id.). The increases are asked for in line with the
rise in the cost of living, which was calculated as per the
Bureau of Labor Statistics for Region II’s published Consumer
Price Index (“CPI”) figures. (Id., pp. 6-7).
However, this Court shall calculate the appropriate hourly
fee by multiplying the cost of living increase by the $125 per
hour statutory cap. Based on the CPI figures provided by the
Bureau of Labor Statistics, since 1996 the cost of living had
risen 43.92% in 2010 and 46.2% in 2011. BUREAU
DATA, CPI DETAILED REPORT DATA
Sanjeev

Katz

&

FOR

OF

LABOR STATISTICS

JANUARY 2010 71 (Malik Crawford,

Andrew

Mauro

http://www.bls.gov/cpi/cpid1001.pdf; BUREAU

-12-

OF

eds.,

2010),

LABOR STATISTICS DATA,

CIVIL NO. 10-1220(JAG)
CPI DETAILED REPORT DATA
Mauro

&

13
FOR

JANUARY 2011 61 (Malik Crawford, Andrew

Jonathan

Church

eds.,

2011),

http://www.bls.gov/cpi/cpid1101.pdf. See also United States v.
Cacho-Bonilla, 206 F. Supp. 2d 204, 210 (D.P.R. 2002) (using CPI
figures

as

the

measure

of

cost

of

living

increase

for

the

purposes of an attorney’s fees award pursuant to the EAJA).
Therefore, the appropriate adjusted rates are $179.90 per hour
and

$182.75

per

hour

for

2010

and

2011,

respectively.

Plaintiff’s counsel worked a total of 20 hours in 2010 and 3.5
hours in 2011.3 (Docket No. 22-3). Thus, in light of there being
no objection from the Commissioner, the Court grants Plaintiff’s
request to increase the statutory $125 cap to account for the
cost of living, finds a total of 23.5 hours as a reasonable
amount of time expended by Plaintiff’s attorney on the district
3

According to counsel’s itemized statement of time expended,
(Docket No. 22-3), he worked a total of 21.6 hours in 2010 and
4.8 hours in 2011. However, the Court finds it appropriate to
reduce the amount of hours in the submitted timesheet. The Court
reduced counsel’s entries in 2010 by 1.6 hours and his entries
in 2011 by 1.3 hours. The rationale for this reduction is that
counsel has an overwhelming amount of entries that indicate 0.1
hours of work for time spent opening the docket each time a new
motion was filed. The Court finds these entries to be excessive
and inappropriate. Similarly, the Court finds that the entry
that indicates 0.3 hours of work for time spent drafting a five
line letter, as well as the entry that indicates 0.3 hours of
work for time spent reading a two page long order, are excessive
and should also be eliminated. See, e.g., Rivera-Quintana v.
Comm'r of Soc. Sec., 692 F. Supp. 2d 223, 228 (D.P.R. 2010)
(reducing an EAJA fees award after finding as unreasonable the
amount of time counsel spent reviewing documents).However, the
Court is eliminating from the calculation all entries of 0.1
hours.
-13-

CIVIL NO. 10-1220(JAG)

14

court proceedings and the fee application, and awards attorney's
fees in the total amount of $4,237.63, representing a payment of
$3,598.00 for hours worked in 2010 and a payment of $639.63 for
hours worked the following year.
The Court notes that, while his Motion for Attorney’s Fees
was successful, Plaintiff’s failure to cite to relevant First
Circuit precedent in the Memorandum of Law in Support of Motion
for Attorney’s Fees, his reliance on Weston v. Cushing, 45 Vt.
531 (1873), as well as his carelessness in following basic rules
of citation, are all instances of very poor legal research.
Plaintiff’s counsel is advised to take the necessary steps to
remedy these inadequacies in future filings submitted to this
Court.

CONCLUSION
For

the

reasons

stated

above,

Plaintiff’s

motion

for

attorney’s fees, (Docket No. 22), is hereby GRANTED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 5th day of July, 2012.
S/ Jay A. García-Gregory
JAY A. GARCÍA-GREGORY
United States District Judge

-14-