Acosta v. Commissioner of Social Security

Filing 32

OPINION AND ORDER granting re 30 MOTION for Attorney Fees Under Equal Access to Justice Act filed by Audy Acosta Signed by U.S. Magistrate Judge Justo Arenas on 10/9/2013.(Arenas, Justo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

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AUDI ACOSTA,

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Plaintiff

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v.

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CIVIL 12-1755 (JA)

COMMISSIONER OF SOCIAL SECURITY,

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Defendant

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OPINION AND ORDER

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On September 13, 2012, plaintiff filed this petition for judicial review of a
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final decision of the Commissioner of Social Security which denied his application
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for a period of disability and Social Security disability insurance benefits. The
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answer to the complaint was filed on February 13, 2013. (Docket No.10). The
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case was transferred to me on September 24, 2012, pursuant to the authority of
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28 U.S.C. § 636(c). (Docket No. 7).
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After evaluating the evidence of record, administrative law judge Glenn G.
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Meyers entered the following findings on November 24, 2010:
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1.
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2.
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3.
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4.
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The claimant last met the insured status requirements of the
Social Security Act on December 31, 2008.
The claimant did not engaged in substantial gainful activity
during the period from his alleged onset date of November 20,
2008 through his date last insured of December 31, 2008 (20
CFR § 404.1571 et seq.).
Through the date last insured, December 31, 2008, the
claimant had the following severe combination of
impairments: status post right distal tibia complex fracture
and left radius fracture, status post open reduction internal
fixation of the left wrist and right ankle and major depressive
disorder. (20 CFR § 404.1520(c)).
Through the date last insured, the claimant did not have an
impairment or combination of impairments that met or
medically equaled one of the listed impairments in 20 CFR

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Part 404, Subpart P, Appendix 1 (20 CFR § 404.1525 and
404.1526).
5. After careful consideration of the entire record, the
undersigned finds that, through the date last insured, the
claimant had the residual functional capacity to perform
sedentary work as defined in 20 CFR 404. 1567(a) except for
a right hand dominant person, can use left arm and hand up
to 6 hours in an 8-hour workday, from the physical standpoint
and can perform simple repetitive tasks, from the mental
standpoint.
6. Through the date last insured, the claimant was unable to
perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on November 7, 1964 and was 44
years old, which is defined as a younger individual age 18-44,
on the date last insured (20 CFR 404.1563).
8. The claimant has a limited education and is unable to
communicate in English (20 CFR 404.1564).
9. Transferability of skills is not material to the determination of
disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not
disabled”, whether or not the claimant has transferable job
skills (See SSR 82-41) and 20 CFR Part 404, Subpart P,
Appendix 2).
10. Through the date last insured, considering the claimant’s age,
education, work experience, and residual functional capacity,
there were jobs that existed in significant number in the
national economy that the claimant could have performed (20
CFR 404.1569 and 404. 1569(a)).
11. The claimant was not under a disability, as defined in the
Social Security Act, at any time from November 20, 2008, the
alleged onset date, through December 31, 2008, the date
last insured (20 CFR 404.1520(g)).

20 Tr. at 22-31; Docket No. 22-1.
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The administrative law judge ended the well-known sequential inquiry

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The inquiry requires a consideration of the

25 claimant's residual functional capacity as well as the claimant's age, education,
26 and past work experience to see if the claimant can do other work.

If the

27 claimant cannot, a finding of disability will follow. See 20 C.F.R. § 404.1520(f).
At step five, the Commissioner bears the burden of determining that significant

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jobs exist in the national economy given the above factors.

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Chater, 172 F.3d 31, 34-36 (1st Cir. 1999); Lancelotta v. Secretary of Health &

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Human Servs., 806 F.2d 284 (1st Cir. 1986); Vázquez v. Secretary of Health &

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Human Servs., 683 F.2d 1, 2 (1st Cir. 1982); Rodriguez-Gonzalez v. Astrue, 854

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F. Supp. 2d 176, 180 (D.P.R. 2012); Vega-Valentin v. Astrue, 725 F. Supp. 2d

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264, 268 (D.P.R. 2010).

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See Nguyen v.

Plaintiff filed a comprehensive memorandum of law against such final

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decision on July 10, 2013.

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Commissioner of Social Security moved to remand under Sentence Four of 42

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U.S.C. § 405(g). (Docket No. 23).

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administrative law judge would be asked on remand to re-evaluate several factors

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and obtain supplemental vocational evidence if warranted. The motion to remand

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was granted and I entered judgment in favor of plaintiff on August 19, 2013.

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(Docket No. 28).

(Docket No.22).

On August 5, 2013, the

The Commissioner explained that the

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This matter is before the court on plaintiff’s motion for attorney’s fees

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pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (hereinafter

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“EAJA”). (Docket No. 30). In it, plaintiff moves for an award of attorney’s fees

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in the total amount of $4,502.38 (28.86 hours at a rate of $188.70 per hour).

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The Commissioner of Social Security has filed no opposition to plaintiff’s motion.

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Plaintiff’s motion having been reviewed, the same is GRANTED.

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The EAJA provides in relevant part that “a court shall award to a prevailing

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party … fees and other expenses … incurred by that party in any civil action …

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brought by or against the United States … unless the court finds that the position

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of the United States was substantially justified.…” 28 U.S.C. § 2412(d)(1)(A). See

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Commissioner, I.N.S. v. Jean, 496 U.S. 154, 155, 110 S.Ct. 2316 (1990);

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Castaneda-Castillo v. Holder, 723 F.3d 48, 57 (1st Cir. 2013); Heredia v. Sec’y of

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Health & Human Svcs., 783 F. Supp 1550, 1551 n.1 (D.P.R. 1992). The burden

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is on the United States to demonstrate that its position was substantially justified

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in the proceedings at the agency and in the ensuing litigation following agency

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action or inaction. See Schock v. United States, 254 F.3d 1, 5 (1st Cir. 2001).

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The Commissioner has failed to meet that burden as demonstrated by its

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acquiescence to the motion for attorney’s fees. See Trinidad v. Sec’y of Health

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& Human Svcs., 935 F.2d 13, (1st Cir. 1991); Santiago-Aybar v. Commissioner of

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Social Security, 545 F. Supp. 2d 231, 236-37 (D.P.R. 2008); cf. Alonso-Velez v.

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Commissioner of Social Security, 796 F. Supp.2d 300,304-05 (D.P.R. 2011). And

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plaintiff is clearly a prevailing party under 42 U.S.C. § 405(g). See Shalala v.

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Schaefer, 509 U.S. 292, 300-02, 113 S. Ct. 2625 (1993).

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I similarly find, after reviewing plaintiff’s itemized statement, that plaintiff’s

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computation of the actual time expended (23.86 hours) and the rate charged per

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hour ($188.70) are reasonable. Counsel has conducted a very active practice of

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law for almost forty years, almost all of it dedicated to Social Security cases. He

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filed a comprehensive 31-page memorandum of law, with attachments, relying

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on what I consider a comparably voluminous, complex record which had

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challenging medical documents in terms of their legibility. See e.g. Ramos-Morales

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v. Commissioner of Social Security, 2013 WL 1909615 (D.P.R. May 8, 2013);

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Bermontiz-Hernandez v. Commissioner of Social Security, 2013 WL 1788550

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(D.P.R. Apr. 26, 2013); Valentin-Negron v. Commissioner of Social Security, 2012

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WL 5948341 (D.P.R. Nov. 28, 2012). The maximum compensable rate per hour

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allowed by the Equal Access to Justice Act in 1996 was $125.00. Cf. Rivera-

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Quintana v. Commissioner of Social Security., 692 F. Supp. 2d 223, 227-28

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(D.P.R. 2010). Cost of living increases justify the rate proposed by plaintiff. See

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28 U.S.C. § 2412(d)(2)(A)(ii); Nieves Montijo v. Commissioner of Social Security,

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2011 WL 903970 (D.P.R. March 10, 2011).

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attorney’s fees in the amount of $4,502.38 at the District Court level.

Therefore, I award reasonable

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SO ORDERED.

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At San Juan, Puerto Rico, this 9th day of October, 2013.

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S/ JUSTO ARENAS
United States Magistrate Judge