Hardamon v. Astrue(CONSENT)

Filing 21

MEMORANDUM OPINION AND ORDER: It is ORDERED that the 18 Motion for Attorney Fees be and is hereby GRANTED to the extent that the plaintiff be and is hereby AWARDED fees in the amount of $2,406.25. To the extent that plaintiffs counsel requests that fees be awarded directly to counsel, 28 U.S.C. § 2412(d)(1)(A) authorizes the court to award fees to the prevailing party. See 28 U.S.C. § (d)(2)(B). The motion that fees be paid directly to counsel be and is hereby DENIED. Signed by Honorable Judge Terry F. Moorer on 10/11/2013. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
TANANA THOMPSON HARDAMON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 1:12-cv-831-TFM
(WO)

MEMORANDUM OPINION and ORDER
On August 13, 2013, the plaintiff filed a Motion for Attorney Fees pursuant to the
Equal Justice Act, 28 U.S.C. § 2412(d). (Doc. # 18). The Commissioner objects to an award
of fees because her “position was substantially justified.” (Def’s Res., Doc. # 20, at 1).
Plaintiff Tanana Thompson Hardamon (“Hardamon”) applied for and was denied
disability insurance benefits by the Commissioner. After her application was denied, she
sought judicial review in this court. On June 6, 2013, the court concluded that the ALJ erred
as a matter of law and remanded the case for further proceedings.
A Social Security disability claimant is a prevailing party entitled to seek EAJA fees
when the claimant obtains a remand for reconsideration of her case by the Commissioner.
See Shala v. Schaefer, 509 U.S. 292, 300-01 (1993). Thus, the plaintiff is a prevailing party.
Under the EAJA, the court “shall award” attorney’s fees “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). See also Gisbrecht v. Barnhart, 535

U.S. 789, 796 (2002). “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. The government bears the burden of showing that its
position was substantially justified.” United States v. Douglas, 55 F.3d 584, 588 (11th Cir.
1995) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988).
It has long been the law of this circuit that an ALJ has a duty to develop a full and fair
record. Kelley v. Heckler, 761 F.2d 1538 (11th Cir. 1985). It is error for the ALJ to fail to
obtain additional testing or otherwise develop the evidence, if that information is necessary
to make an informed decision. See Holloday v. Bowen, 848 F.2d 1206, 1209 (11th Cir. 1988).
Although the record included medical documentation indicating Hardamon received
treatment for fibromyalgia, the ALJ ignored this evidence and took no steps to explore the
severity of her condition by securing a consultative examination and additional testing by a
medical specialist, such as a rheumatologist. In addition, the ALJ improperly relied on the
opinion of a non-examining non-physician and failed to consider Hardamon’s inability to
afford medical treatment when determining that Hardamon has the residual functional
capacity to return to her past work as a customer service representative.
Because the ALJ failed to develop the record and ignored medical evidence, thereby
improperly substituting his judgment for that of a medical specialist, the ALJ committed legal
error requiring a remand for further proceedings. Thus, the Commissioner’s position in this
litigation did not have a reasonable basis in law. Pierce requires that the government’s

2

position be reasonable both in fact and law to be substantially justified.
The Commissioner argues that Plaintiff is not entitled to fees because “both the
underlying agency conduct and the Commissioner’s defense of that conduct were
reasonable.” (Doc. # 20 at 6).
Not only does the defendant’s articulation of the issues miss the mark, the arguments
presented by the Commissioner merely rehash his arguments in support of the ALJ’s
determination. The Commissioner offers potential rationales for the ALJ’s findings but those
rationales do not excuse the ALJ’s failure to develop the record and improperly substitute his
judgment for that of a medical specialist. The Commissioner’s position was not substantially
justified because the ALJ failed in his duties to properly evaluate all the evidence by
developing the record and improperly substituting his judgment for that of a medical
specialist. Consequently, the Commissioner’s position was not reasonable in law, and the
plaintiff is entitled to an award of fees under EAJA.
The plaintiff seeks fees in the amount of $2,406.25. The Commissioner does not
challenge any of the hours expended by counsel as unreasonable nor does he challenge the
hourly rate. Accordingly, upon consideration of the motion, and for good cause, it is
ORDERED:
1.

The Motion for Attorney Fees (doc. # 18) be and is hereby GRANTED to the
extent that the plaintiff be and is hereby AWARDED fees in the amount of
$2,406.25.

3

2.

To the extent that plaintiff’s counsel requests that fees be awarded
directly to counsel, 28 U.S.C. § 2412(d)(1)(A) authorizes the court to
award fees to the prevailing party.1 See 28 U.S.C. § (d)(2)(B). The
motion that fees be paid directly to counsel be and is hereby DENIED.

DONE this 11th day of October, 2013.

/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

1

On May 5, 2008, the Eleventh Circuit Court of Appeals decided Reeves v. Astrue, 526 F.3d 732
(11th Cir. 2008) in which the Court unambiguously held that “attorney's fees are awarded to the prevailing
party, not to the prevailing party's attorney.” Id. at 738. On June 14, 2010, the United States Supreme Court
decided Astrue v. Ratliff, 130 S.Ct. 2521 (2010) in which the Court unambiguously held that attorney’s fees
are awarded to the prevailing litigant, not to prevailing litigant’s attorney. See also Reeves v. Astrue, 526
F.3d 732, 738 (11th Cir. 2008) (“attorney’s fees are awarded to the prevailing party, not to the prevailing
party's attorney.”).

4