Santiago-Aybar v. Commissioner of Social Security, Civ. No. 05-1168 (PG).

• Decision Date: 15 April 2008
• Docket Number: Civ. No. 05-1168 (PG).
• Citation: 545 F.Supp.2d 231
• Parties: SANTIAGO-AYBAR, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — District of Puerto Rico

545 F.Supp.2d 231

SANTIAGO-AYBAR, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

Civ. No. 05-1168 (PG).

United States District Court, D. Puerto Rico.

April 15, 2008.

Raymond Rivera-Esteves, Juan A. Hernández-Rivera, Juan Hernandez Rivera & Assoc., San Juan, PR, for Plaintiff.

Ginette L. Milanes, Katherine Gonzalez-Valentin, United States Attorney's Office, San Juan, PR, for Defendant.

OPINION AND ORDER

JUAN M. PEREZ-GIMENEZ, District Judge.

Pending before the Court is Plaintiff William Santiago-Aybar's (hereafter "Plaintiff or "Santiago-Aybar") Motion for Attorney Fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. Plaintiff's attorney, Juan A. Hernández-Rivera, seeks EAJA fees in the amount of $3,094.36, based on 21.5 hours of attorney time at rates ranging between $77.75 and $162.50. Plaintiff's request stands unopposed.

For the reasons that follow, the Plaintiff's Motion for Attorney's Fees and Costs (Docket No. 18) is GRANTED.

I. BACKGROUND

Plaintiff filed this civil action under 42 U.S.C. § 405(g), seeking judicial review of the decision of the defendant, the Commissioner of Social Security (hereafter "the Commissioner"), denying his application for entitlement to a period of disability and ensuing benefits. Santiago-Aybar requested in the complaint that judgment setting aside the determination of the Commissioner be entered and that he be awarded Social Security Disability benefits under the provisions of the Social Security Act. See Docket No. 2. On June 24, 2005, the case was referred to Magistrate Judge Camille L. Velez-Rivé. See Docket No. 7. In her Report and Recommendation ("R & R" or "Report"), the Magistrate Judge found that the Administrative Law Judge's ("ALJ") decision denying Plaintiff's application for social security disability benefits was not supported by substantial evidence, and thus, recommended that the Commissioner's decision be set aside and the case be remanded for further proceedings. See Docket No. 14.

The Court adopted the R & R, to which no objections were filed, and entered judgment in favor of Plaintiff against defendant, remanding the case for further proceedings consistent with the Report and Recommendation as adopted. See Dockets No. 16-17. The Court must note that although the remand order and final judgment entered on August 21, 2006 vacated the decision of the Commissioner and remanded the case for further action, the Court did not specifically state the statutory basis for remand. Thirty days thereafter, Plaintiff applied for an award of attorney fees pursuant to the EAJA. See Dockets No. 14, 16-17. The defendant failed to file an opposition to Plaintiff's.

II. DISCUSSION

A. Standard for Costs and Fees under 28 U.S.C. § 2412

"In 1980, Congress passed the EAJA in response to its concern that persons may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense involved in securing the vindication of their rights." Sullivan v. Hudson, 490 U.S. 877, 883, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989). "The EAJA was designed to rectify this situation by providing for an award of a reasonable attorney's fee to a `prevailing party' in a `civil action' or `adversary adjudication' unless the position taken by the United States in the proceeding at issue `was substantially justified' or `special circumstances make an award unjust.'" Id. (citing 28 U.S.C. § 2412(d)(1)(A)).

Therefore, before awarding attorney fees under the EAJA, a court must find that the plaintiff is a prevailing party, that the position of the Commissioner lacks substantial justification, that special circumstances making an award unjust do not exist, and that the fee petition was filed within thirty (30) days of final judgment. 28 U.S.C. § 2412(d)(1)(B).

B. "Final Judgment" Requirement

"The question of whether the plaintiff is entitled to attorney fees can only be decided after resolving the issue of whether this court's remand was a `final judgment' under the EAJA." Ericksson v. Barnhart, No. Civ. 300CV2221AHNHBF, 2006 WL 798938, at *3 (D.Conn. March 23, 2006). "The answer depends on what kind of remand the District Court contemplated." Melkonyan v. Sullivan, 501 U.S. 89, 97, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991). The EAJA defines "final judgment" as a judgment that is final and not appealable. 28 U.S.C. § 2412(d)(2)(G). The Supreme Court ruled that "a `final judgment' for the purposes of 28 U.S.C. § 2412(d)(1)(B) means a judgment rendered by the court that terminates the civil action for which EAJA fees may be received." Melkonyan v. Sullivan, 501 U.S. at 96, 111 S.Ct. 2157. "`Final judgment' in a social security case is `final' only if the judgment completely determines a plaintiff's entitlement to benefits." Olivero v. Barnhart, No. Civ. 03CV1830 (JCH), 2006 WL 980562 at *2 (D.Conn. March 24, 2006) (citing Altieri v. Sullivan, 754 F.Supp. 34, 37 (S.D.N.Y. 1991)).

"Resolution of the question of finality in cases involving section 405(g) remands hinges on a court's characterization of the nature of the remand, the ultimate issue being whether the order is a `sentence four or a sentence six remand. Longey v. Sullivan, 812 F.Supp. 453, 455-456 (D.Vt.1993). In Sullivan v. Finkelstein, 496 U.S. 617, 110 S.Ct. 2658, 110 L.Ed.2d 563 (1990), the United States Supreme Court identified two kinds of remand pursuant to 42 U.S.C. § 405(g): (1) remands pursuant to the fourth sentence, and (2) remands pursuant to the sixth sentence. Id. at 97-98, 111 S.Ct. 2157 (citing Finkelstein, 496 U.S. at 623-629, 110 S.Ct. 2658).

"The fourth sentence of § 405(g) authorizes a court to enter a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing." Id. at 98, 111 S.Ct. 2157 (internal quotation marks omitted). "To remand under [this] provision, sentence four, the district court must either find that the decision is not supported by substantial evidence, or that the Commissioner (or the ALJ) incorrectly applied the law relevant to the disability claim." Jackson v. Chater, 99 F.3d 1086, 1092 (11th Cir.1996). "Sentence four remands make a decision on the merits of the case and often vacate a Commissioner's order. ... A court divests itself of jurisdiction following a sentence four remand. ... Thus, ... a sentence four remand is treated as a final judgment for purposes of filing attorney fee applications under EAJA." Olivero, 2006 WL 980562, at *3.

On the other hand, "the sixth sentence of § 405(g), ..., describes an entirely different kind of remand." Melkonyan v. Sullivan, 501 U.S. at 98, 111 S.Ct. 2157 (citing Finkelstein, 496 U.S. at 626, 110 S.Ct. 2658).¹

The district court does not affirm, modify, or reverse the Secretary's decision; it does not rule in any way as to the correctness of the administrative determination. Rather, the court remands because new evidence has come to light that was not available to the claimant at the time of the administrative proceeding and that evidence might have changed the outcome of the prior proceeding. ... The statute provides that following a sentence six remand, the Secretary must return' to the district court to "file with the court any such additional or modified findings of fact and decision, and a transcript of the additional record and testimony upon which his action in modifying or affirming was based."

Id. at 98, 111 S.Ct. 2157 (citing 42 U.S.C. § 405(g)). "Sentence-six remands may be ordered in only two situations: where the Secretary requests a remand before answering the complaint, or where new, material evidence is adduced that was for good cause not presented before the agency." Shalala v. Schaefer, 509 U.S. 292, 297 n. 2, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993) (internal citations omitted). A sentence six remand must show that the evidence is "new" and not merely cumulative of what is already in the record. See Szubak v. Secretary of Health and Human Servs., 745 F.2d 831, 833 (3d Cir.1984).

In accordance with the foregoing, we will now examine the Magistrate Judge's findings in order to determine whether her recommendation to remand the case for further proceedings was made pursuant to sentence four or six of Section 405(g). In the case at hand, the Magistrate Judge made three findings justifying remand. One ground for remand was the ALJ's failure to provide clear and convincing reasons for rejecting the claimant's testimony. The Magistrate Judge recommended, thus, that the case be remanded to enable the ALJ to make a proper credibility determination. Second, the Magistrate found that the record was devoid of a residual functional capacity analysis by a physician or other expert. Thus, the ALJ erred "in assessing the claimant's residual functional capacity by ignoring medical evidence, substituting his judgment for that of medical professionals and improperly discounting the opinion of a treating physician." See Docket No. 14 at pages 15-16. Finally, the Magistrate Judge found as follows:

This Magistrate Judge considers the decision of the Commissioner lacks substantial evidence in support. A remand on disability determinations is appropriate for the administrative agency to be able to consider new evidence when the new evidence would be material and there is good cause for the failure to incorporate such evidence into the record in a prior proceeding. New evidence meets the materiality requirement if it bears directly and substantially on the matter in dispute and there is a reasonable possibility that the new evidence would have changed the outcome. A remand is the proper remedy here because it would allow the Commissioner to fulfill his role of resolving conflicting evidence, a task which is not ours to perform.

Id. at pages 17-18 (emphasis ours).

After a comprehensive reading of the Report, we find that, although the language of the Magistrate Judge's R & R appears to indicate that the...