Sheard v. Astrue (CONSENT)

Filing 22

MEMORANDUM OPINION AND ORDER GRANTING 19 MOTION for Attorney Fees to the extent that the plaintiff be and is hereby AWARDED fees in the amount of $1,843.75; (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, the motion that fees be paid directly to counsel be and is hereby DENIED. Signed by Honorable Judge Terry F. Moorer on 8/22/2012. (djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JAMES ALLEN SHEARD
Plaintiff,
v.
MICHAEL ASTRUE,
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 2:11-cv-575-TFM
(WO)

MEMORANDUM OPINION and ORDER
On June 28, 2012, the plaintiff filed a Motion for Attorney Fees pursuant to the Equal
Justice Act, 28 U.S.C. § 2412(d). (Doc. # 19). The Commissioner objects to an award of
fees because his “position was substantially justified.” (Def’s Res., Doc. # 21, at 1).
Plaintiff James A. Sheard (“Sheard”) applied for and was denied disability insurance
benefits by the Commissioner. After his application was denied, he sought judicial review
in this court. On April 2, 2012, 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 was replete with references to Plaintiff suffering from depression, posttraumatic stress disorder, and other psychological problems, the ALJ failed to develop the
record by questioning the medical expert concerning Plaintiff’s mental impairments. By
failing to seek a medical expert’s opinion concerning all of the relevant mental health
records, the ALJ improperly substituted his judgment for that of a psychologist. Because the
ALJ failed to develop the record and improperly substituted 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 position be reasonable both in fact and law to be
substantially justified.
The Commissioner argues that Plaintiff is not entitled to fees because the
Commissioner “reasonably defended the ALJ’s finding that the record was sufficient to make
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a determination regarding disability.” (Doc. # 21 at 5).
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 $1,843.75. 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 that the motion for attorney’s fees (doc. # 19) be and is hereby
GRANTED to the extent that the plaintiff be and is hereby AWARDED fees in the amount
of $1,843.75.
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
1

On May 5, 2008, the Eleventh Circuit Court of Appeals decided Reeves v. Astrue, 526 F.3d 732
(11 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
th

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is hereby DENIED.
DONE this 22nd day of August, 2012.

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

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.”).

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