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Striplin v. Berryhill

United States District Court, M.D. Pennsylvania

July 10, 2017

ROBERT A. STRIPLIN, Plaintiff
v.
NANCY BERRYHILL, [1]Acting Commissioner of Social Security, Defendant

          Cohn Magistrate Judge

          MEMORANDUM

          JAMES M. MUNLEY JUDGE

         Before the court for disposition is Plaintiff Robert A. Striplin's motion for attorney's fees pursuant to the Equal Access to Justice Act. The defendant opposes the motion. The parties have briefed their respective positions, and the motion is ripe for disposition.

         Background

         On January 12, 2009, plaintiff filed protective applications for disability insurance benefits and Social Security Income due to epilepsy. (Doc. 11, Admin. Record (hereinafter “R.”) at 243-55).

         Plaintiff's file was reviewed by the Social Security Administration (hereinafter “SSA”) as part of an administrative proceeding. (R. at 12). On April 16, 2012, the SSA determined plaintiff was not disabled and denied benefits. Consequently, plaintiff filed a request for a hearing before the administrative law judge (hereinafter “ALJ”). The ALJ held a hearing on May 10, 2010. The ALJ conducted a five-step sequential analysis to reach her conclusion: (1) whether the claimant is currently engaged in substantial activity; (2) if not, whether the claimant has a severe impairment or a combination of impairments that are severe[2]; (3) whether the medical evidence of the claimant's impairment meets the criteria of a “listed impairment”; (4) whether the claimant's impairments prevent him from performing his past relevant work; and (5) if the claimant is incapable of performing his past relevant work, whether he can perform a job that exists in the economy. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).

         At step two in the five-step sequential analysis, the ALJ concluded that plaintiff suffered from disc herniations at both L4-5 and L5-S1. According to the ALJ the herniations were “mild” and did not meet the “severe” threshold required to survive step two. The ALJ interpreted the opinion of Adel B. Mikhaiel, M.D., to reach her conclusion that the L5-S1 herniation was mild. (R. at 445). However, the ALJ determined that plaintiff's other conditions were “severe”, so the five-step sequential analysis continued. A Vocational Expert (hereinafter “VE”), employed by the ALJ, determined that jobs exist in the national economy that plaintiff could perform with his impairments, thus plaintiff's case failed to meet step five of the five-step process.

         Because plaintiff's claim failed to satisfy step five of the five-step analysis, the ALJ denied plaintiff's request for benefits on June 23, 2010. (R. at 137-79, 183-201). Plaintiff filed an appeal to the Appeals Council which remanded the case back to the ALJ for a lack of substantial evidence. (R. at 202-07). The second hearing was held on May 29, 2013. (R. at 14-15). The ALJ again denied plaintiff's claim on July 16, 2013. (Id.) Plaintiff requested a review by the Appeals Council, but the Appeals Council denied the request on December 10, 2014. (R. at 1-5). As a result, the Commissioner of Social Security adopted the ALJ's finding that plaintiff was not disabled as her final decision.

         On February 18, 2015 plaintiff appealed to this court pursuant to 24 U.S.C. § 405(g). The appeal was assigned to Magistrate Judge Gerald B. Cohn. On March 31, 2016, Magistrate Judge Cohn filed a report and recommendation (hereinafter “R&R”) recommending that we uphold the Commissioner's decision. (Doc. 20, R&R at 50). Specifically, the Magistrate Judge indicated plaintiff mischaracterized the ALJ's report when he argued the ALJ's decision did not consider any of diagnoses or observations made by his neurologists. (Doc. 20, R&R at 39). Instead, the R&R suggested the ALJ properly weighed and evaluated all evidence to reach a conclusion supported by substantial evidence. (Doc. 20, R&R at 50). Further, the Magistrate Judge decided even if the ALJ did err, the error was harmless because the VE identified jobs in the national economy plaintiff could perform. (Doc. 20, R&R at 43-44).

         The Court did not adopt the R&R, instead we remanded the case and we concluded the ALJ erred as a matter of law when she decided plaintiff's lumbar spine impairment did not satisfy the de minimis threshold of severity required to meet step two of the five-step process. (Doc. 23, Memo. of Oct. 7, 2016 at 14).

         Accordingly, on December 28, 2016 plaintiff filed a motion for attorney's fees pursuant to the Equal Access to Justice Act (hereinafter “EAJA”) 28 U.S.C. § 2412. Additionally, plaintiff seeks attorney's fees for litigating this EAJA claim. Plaintiff seeks a total of $7, 556.25.[3]

         Jurisdiction

         We have federal question jurisdiction over this Social Security Administration appeal. See 42 U.S.C. § 1383(c)(3). (“The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title.”); see also 42 U.S.C. § 405(g)(“any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such a decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides or has his principle place of business…”).

         Legal ...


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