Palomares v. Astrue

• Decision Date: 18 December 2012
• Docket Number: No. C-11-4515 EMC,C-11-4515 EMC
• Parties: VICTOR PALOMARES, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner, Social Security Administration, Defendant.
• Court: U.S. District Court — Northern District of California

VICTOR PALOMARES, Plaintiff,

v.MICHAEL J. ASTRUE, Commissioner, Social Security Administration, Defendant.

No. C-11-4515 EMC

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

Dated: December 18, 2012

ORDER GRANTING PLAINTIFF'S

MOTION FOR ATTORNEY'S FEES

(Docket No. 26)

I. INTRODUCTION

Pending before the Court is Plaintiff Victor Palomares's Motion for Attorney's Fees under the Equal Access to Justice Act. (Pl.'s EAJA Mot., Docket No. 26.) After being denied disability insurance and SSI benefits by an Administrative Law Judge (ALJ) at the Social Security Administration (SSA), and having his request for review denied by the SSA Appeals Council, Mr. Palomares appealed to this Court and won a remand. This Court found the Appeals Council erred by not considering new evidence from Mr. Palomares's treating physician, Dr. Ho, which was material and may have altered the ALJ's determination. Plaintiff now seeks fees for bringing his appeal and this fee motion. For the reasons discussed below, the Court hereby GRANTS plaintiff's motion for attorney's fees in the amount of $6953.53.

II. FACTUAL & PROCEDURAL BACKGROUND

Mr. Palomares filed for disability insurance and SSI benefits on November 24, 2006, claiming an inability to work based on his injury and subsequent repair surgery in 2004. Palomaresv. Astrue, No. C-11-4515 EMC, 2012 WL 3313535, at *2 (N.D. Cal. Aug. 13, 2012). The SSA denied his applications initially and upon reconsideration in 2007 and 2008. Id. Mr. Palomares subsequently retained counsel and requested a hearing by an ALJ. Id. The hearing was conducted on May 7, 2009. Id. at *3. At the hearing, the ALJ heard testimony from Mr. Palomares and a vocational expert ("VE"). Id.

On June 3, 2009, the ALJ concluded that Mr. Palomares suffered from severe impairments but that he was not entitled to disability benefits because he was capable of performing his past relevant work as an industrial-truck operator. Id. In the alternative, the ALJ found that Mr. Palomares could perform other work as well and thus was not disabled. Id. The ALJ evaluated Mr. Palomares's claim of disability using the five-step sequential evaluation process for disability required under 20 C.F.R. §§ 404.1520 and 416.920. Id.

Step one disqualifies claimants who are engaged in substantial gainful activity from being considered disabled under the regulations. Step two disqualifies those claimants who do not have one or more severe impairments that significantly limit their physical or mental ability to conduct basic work activities. Step three automatically labels as disabled those claimants whose impairment or impairments meet the duration requirement and are listed or equal to those listed in a given appendix. Benefits are awarded at step three if claimants are disabled. Step four disqualifies those remaining claimants whose impairments do not prevent them from doing past relevant work. Step five disqualifies those claimants whose impairments do not prevent them from doing other work, but at this last step the burden of proof shifts from the claimant to the government. Claimants not disqualified by step five are eligible for benefits.

Celaya v. Halter, 332 F.3d 1177, 1180 (9th Cir. 2003).

At step one, the ALJ stated that there was no evidence that Mr. Palomares had engaged in substantial gainful activity since December 15, 2004, the alleged disability onset date. Palomares, 2012 WL 3313535, at *2. At the second step, the ALJ concluded that Mr. Palomares suffered from the following severe impairments: rotator cuff injury, depression, and hearing loss. Id. At the third step, the ALJ determined that none of these impairments or a combination of impairments were listed in or were the medical equivalent of an impairment listed in the relevant appendix. Id. at *3.

At the beginning of step four, the ALJ concluded that Mr. Palomares has the residual functional capacity ("RFC") to perform heavy work as defined in 20 C.F.R. § 416.967(a) except onthe left side. Id. On the left side, the ALJ determined that Mr. Palomares could "only lift and or carry 10 pounds frequently, and 20 pounds occasionally, occasionally push or pull, reach, and reach overhead with the left upper extremity." Id. The ALJ also concluded that Mr. Palomares is limited to occupations that do not require fine hearing capability and that he can only perform work with one or two-step tasks. Id. The ALJ rejected Mr. Palomares's excess pain testimony, finding that while the "claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms[,] the claimant's statements concerning the intensity and persistence and limited effects of these symptoms are not credible to the extent that they are inconsistent with the [RFC] assessment." Id. To support this adverse credibility finding, the ALJ reasoned that despite his claims of disabling pain, Mr. Palomares was only prescribed Naprosyn without any stronger pain medications, was not on any medicine when he was examined by physicians in December 2006 and February 2008, could perform some household chores, went outside two to three times daily, and could at times relieve his pain simply by resting, exercising, or using an ice pack. Id. On review, this Court did not directly consider this adverse credibility finding. Id. at *10 n. 9.

At step four, the ALJ relied on two hypotheticals posed to a VE in which Mr. Palomares was given a heavy RFC limited to occasional pushing, pulling and reaching on the left side. Id. at *3. For the second hypothetical, the ALJ added the restriction of lifting ten pounds frequently and twenty pounds occasionally on the left side. Id. Both hypotheticals had a limitation of no fine hearing. Id. Based on these limitations, the VE testified for both hypotheticals that Mr. Palomares could perform his previous occupation as it is described in the Dictionary of Occupational Titles (DOT). Id. Thus, the ALJ concluded that Mr. Palomares could perform his past relevant work as a forklift operator and was therefore not disabled. Id.

Although he had already found that Mr. Palomares was not disabled at step four, the ALJ continued to the fifth step to determine that "considering the claimant's age, education, work experience, and [RFC], there are jobs that exist in significant numbers in the national economy that the claimant can perform." Id. To make this determination, the ALJ applied the Medical-Vocational Guidelines ("grids") based on an "[RFC] for the full range of heavy work." Id. The ALJ concludedthat Mr. Palomares was not disabled under sections 261(I), 223(d), and 114(a)(3)(A) of the Social Security Act from December 15, 2004 through the date of the hearing. Id.

Mr. Palomares requested review of the ALJ's unfavorable decision by the Appeals Council. Id. at *4. Supplementing this request, Mr. Palomares submitted the assessment of his then treating physician, Dr. Ho, and the Appeals Council made the document part of the record on August 8, 2011. Id. This additional evidence was a physical RFC questionnaire that indicated that Dr. Ho had seen Mr. Palomares regularly since 2008. Id. Based on the results of an x-ray taken on July 9, 2010, the questionnaire identified a decreased range of motion at the left shoulder and neck, and calcific tendinitis of the left shoulder as a result of Mr. Palomares' surgery in 2004. Id. The opinion noted that Mr. Palomares reported a constant pain of seven out of ten that was exacerbated by motion and reaching. Id. It was consistent with Dr. Ho's progress notes, which were part of the record considered by the ALJ that show that Dr. Ho had prescribed Ibuprofen 800 for Mr. Palomares's pain. Id. Dr. Ho also opined that depression contributed to the severity of Mr. Palomares's symptoms and that he was only capable of low stress jobs due to his "severe" depressive symptoms. Id.

On August 8, 2011, the Appeals Council denied Mr. Palomares's request for review, concluding that the additional evidence did not provide a basis for challenging the ALJ's decision. Id. Mr. Palomares then sought judicial review by this Court requesting that the case be remanded to the Commissioner with instructions to award all disability benefits due to him, or alternatively, with instructions regarding proceedings on remand. Id. This Court remanded, "[b]ecause of the addition of the new evidence, unresolved issues, and legal errors." Id. at*16. Specifically this Court directed the ALJ to reassess Mr. Palomares's RFC, including all of his relevant limitations in light of the whole record, including Dr. Ho's opinion, to reassess the step four conclusion in light of Mr. Palomares's complete RFC, and if necessary, to proceed to step five in light of this opinion. Id.

Following the Court's order remanding this case, Mr. Palomares filed the current motion seeking attorney's fees from August 25, 2011 until the present, which encompasses all fees accrued during this Court's review of the case and subsequent fee litigation. (See Pl.'s EAJA Mot., Docket No. 26, Ex. 2.)

III. DISCUSSION

A. Equal Access to Justice Act

Mr. Palomares seeks fees under the Equal Access to Justice Act, which provides that

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 the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A) (emphasis added).

1. Prevailing Party

There is no dispute in this case that Mr. Palomares, on winning a remand from this Court, became the prevailing party for purposes of the Equal Access to Justice Act. The Commissioner concedes this point in his Opposition Motion. (Def.'s Opp'n to Pl.'s EAJA Mot. ("Def.'s Opp'n"),...