United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on plaintiff's Petition for
EAJA Fees Pursuant to 28 U.S.C. 2312(d) (Doc. #34) filed on
June 6, 2019. The Commissioner filed an Opposition (Doc. #35)
on June 24, 2019, and plaintiff filed a Reply (Doc. #38) on
July 22, 2019, with leave of Court. Plaintiff seeks an award
of $8, 510.88 in attorney fees and $12.00 in paralegal fees.
For the reasons set forth below, plaintiff’s petition
March 8, 2019, the Court issued an Opinion and Order (Doc.
#31) adopting in part the Magistrate Judge’s Report and
Recommendation (Doc. #25). At step five, the Magistrate Judge
found that a significant number of jobs existed in the
The ALJ’s misstatement was harmless, though, as the
Court recommends that substantial evidence supports the
ALJ’s finding that Plaintiff could perform the ticket
taker job because 10, 000 jobs in the national economy for
the ticket taker position is a significant number of jobs.
See Brooks v. Barnhart, 133 Fed.App’x 669, 671
(11th Cir. 2005) (substantial evidence supported ALJ’s
finding that 840 jobs in the national economy constituted
significant number of jobs); Rodriguez v. Comm’r of
Soc. Sec., No. 6:17-cv-1374-Orl-22GJK, 2018 WL 840129,
at *6 (M.D. Fla. Jan. 25, 2018) (harmless error where ALJ
erred as to one job at step five but made valid findings as
to a different job); Johnson v. Comm’r of Soc.
Sec., No. 5:14-cv-141-Oc-PRL, 2014 WL 12623026, at *5
(M.D. Fla. Sept. 9, 2014).
(Doc. #25, p. 23.) The undersigned disagreed with the
ultimate conclusion that a significant number of jobs existed
in the national economy:
Here, the ALJ erred as to plaintiff’s ability to
perform two of the three jobs, and made no findings at all
regarding the sufficiency of the number of ticket taker jobs
standing alone. The Court is persuaded by Randazzo v.
Berryhill, 725 Fed.App’x 446, 448 (9th Cir. 2017),
which found harmless error did not apply because “10,
000 electrical accessories assembler jobs found by the expert
may not amount to a significant number of jobs in the
national economy.” This is particularly so in this
case, where the ALJ seemed to take some comfort in the
availability of the two sedentary jobs which were erroneously
(Doc. #31, pp. 9-10.) The undersigned affirmed in part the
Decision of the Commissioner of Social Security, and remanded
to make factual findings as to whether the number of
ticket-taker jobs available in the national economy
constituted a significant number within the meaning of the
statute and regulation, and to also clarify the weight given
to Dr. Kelly’s opinion.
prevailing party is entitled to fees, costs, and other
expenses “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). In seeking an award, plaintiff must show that
she is a prevailing party with a net worth that does not
exceed $2 million, allege that the position of the United
States was not substantially justified, and submit an
application with an itemized statement as to the time
expended and the rate applied. Scarborough v.
Principi, 541 U.S. 401, 408 (2004) (citing 28 U.S.C.
§ 2412(d)(1)(B), (d)(2)(B)). The Commissioner argues
that relief should be denied because its position was
substantially justified, even if erroneous.
or not the position of the United States was substantially
justified shall be determined on the basis of the record
(including the record with respect to the action or failure
to act by the agency upon which the civil action is based)
which is made in the civil action for which fees and other
expenses are sought.” 28 U.S.C. § 2412(d)(1)(B).
The United States Supreme Court “have held that the
term ‘substantially justified’ means
‘justified in substance or in the main’-that is,
justified to a degree that could satisfy a reasonable
person.” Comm'r, I.N.S. v. Jean, 496 U.S.
154, 158 n.6 (1990) (quoting Pierce v. Underwood,
487 U.S. 552, 565-566 (1988)). The Eleventh Circuit, as has
the majority of court of appeals, defines
‘substantially justified’ as:
The government's position is substantially justified
under the EAJA when it is ‘justified to a degree that
would satisfy a reasonable person’-i.e. when it has a
reasonable basis in both law and fact.” United
States v. Douglas, 55 F.3d 584, at 588 (11th Cir. 1995)
(quoting Pierce, 487 U.S. at 565, 108 S.Ct. at 2550.
“The government bears the burden of showing that its
position was substantially justified.” City of
Brunswick, Ga. v. United States, 849 F.2d 501, 504 (11th
United States v. Jones, 125 F.3d 1418, 1425 (11th
case, the Court found that “the ALJ erred as to
plaintiff’s ability to perform two of the three jobs,
and made no findings at all regarding the sufficiency of the
number of ticket taker jobs standing alone.” (Doc. #31,
p. 10.) The Court found that a remand was necessary for a
factual finding as to whether the ticket taker job standing
alone constituted a significant number of jobs in the
national economy because the two sedentary jobs were
erroneously considered. (Id.) The Court also found
that the ...