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Clark v. Commissioner of Social Security

United States District Court, M.D. Florida, Fort Myers Division

September 30, 2019

AMANDA CHRISTINE CLARK, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          JOHN E. STEELE SENIOR UNITED STATES DISTRICT JUDGE

         This 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 is granted.

         I.

         On 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 national economy:

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 considered.

(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.

         II.

         A 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.

         “Whether 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 Cir. 1988).

United States v. Jones, 125 F.3d 1418, 1425 (11th Cir. 1997).

         In this 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 ...


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