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Cruz v. Astrue

June 22, 2009

MODESTO CRUZ, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY DEFENDANT.



The opinion of the court was delivered by: Lynne A. Sitarski United States Magistrate Judge

MEMORANDUM

Plaintiff Modesto Cruz ("plaintiff") sought judicial review pursuant to 42 U.S.C. § 405 (g), of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying plaintiff's claim for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. 42 U.S.C. §§ 401, et seq. On August 21, 2008, a notice, consent, and order of reference was filed by consent of the parties and order of court in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, giving this Court jurisdiction to order the entry of final judgment and conduct all post-judgment proceedings in this matter. This Court heard Oral argument on January 12, 2009 and both parties subsequently submitted supplemental briefs at the request of the Court.

This Court issued a Memorandum and Order on January 30, 2009, granting in part and denying in part plaintiff's Request for Review, and remanding the case to the to the Administrative Law Judge ("ALJ") for further proceedings in accordance with the fourth sentence of 42 U.S.C. § 405(g).On March 17, 2009, plaintiff filed the instant motion for attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. The Commissioner filed a brief in opposition to this motion, arguing that its position in the matter was "substantially justified" within the meaning of the EAJA. Plaintiff filed a reply brief.

For the reasons that follow, plaintiff's Motion for Attorney's Fees will be denied.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff applied for DIB on August 22, 1997, claiming back and neck impairments. (R. at 46). On December 3, 1997, his claim for benefits was denied. (R. at 27-28). Plaintiff timely requested a hearing before an ALJ, which was held on November 19, 1998. (R. at 176-197). The ALJ denied plaintiff's request for benefits on March 18, 1999. (R. at 11-19). The Appeals Council denied his request for review on October 11, 2001. (R. at 3-4). Plaintiff filed a civil action on November 19, 2001 (Dkt. No. 01-cv-5795). The District Court granted plaintiff's Motion for Summary Judgment in part, and remanded the matter to the Commissioner for consideration of all the relevant medical evidence in determining plaintiff's RFC and his ability to return to his past relevant work. (R. at 218-226).

On remand, plaintiff sought disability benefits for a closed period of time from November 23, 1996 through November 15, 2000. (R. at 212). During that closed period, plaintiff took various medications and underwent physical therapy for management of his pain. (R. at 57, 179-80). Plaintiff began working again on November 15, 2000 for his previous employer and continued working there until the employer relocated in 2005. The ALJ held a hearing on August 13, 2004. (R. at 289). The ALJ found that plaintiff was not disabled and that he could return to his past relevant work as a machine operator. (R. at 217). Plaintiff appealed this decision to the Appeals Council, which declined review on February 21, 2006. (R. at 198).

Plaintiff filed another civil action on March 2, 2006 (Dckt. No. 06-1008). On July 17, 2006, the Commissioner filed an Uncontested Motion For Remand (R. at 351), seeking remand for the ALJ to: (1) reevaluate plaintiff's RFC considering the state agency opinions; (2) address the treating physician's opinions that plaintiff is disabled and provide rationale for the weight assigned those opinions; (3) obtain vocational expert testimony to determine the physical and mental demands of plaintiff's past work; and (4) in the event plaintiff is unable to perform past work, determine if there are any other jobs plaintiff can perform. (R. at 352). This uncontested motion was granted on July 19, 2006 (R. at 348).

Plaintiff also filed a second application with a protective filing date of April 17, 2006, seeking benefits from August 30, 2004 forward. (R. at 373-75, 408). Plaintiff was granted benefits pursuant to this application. (R. at 371-72). In the second remand order, the Appeals Council consolidated the remanded action with the new application for consideration by the ALJ.

(R. at 360-61).

A third hearing was held on April 24, 2007. (R. at 311). On September 26, 2007, the ALJ denied benefits for the closed period from November 23, 1996 to November 15, 2000, but granted benefits from November 7, 2005 forward. (R. at 310-21).

Plaintiff filed a third civil action on January 11, 2008, challenging the denial of benefits for the closed period from November 23, 1996 to November 15, 2000. The parties consented to magistrate judge jurisdiction and this Court issued a Memorandum and Order on January 30, 2009, granting in part and denying in part plaintiff's Request for Review, and remanding the case to the ALJ for proper assessment of the 2007 Medical Source Statement Concerning Nature and Severity of Impairments (Statement) completed by Melanie Ice, D.O.

This Court will now address plaintiff's Motion for Attorney's Fees ...


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