Sims v. Astrue

Filing 22

MEMORANDUM OPINION AND ORDER directing that, pursuant to the EAJA, the plf's 19 MOTION for Attorney Fees be and is hereby GRANTED and the plf be and is hereby awarded fees in the amount of $2,534.50; further ORDERING that, to the extent the plf's counsel requests that fees should be awarded directly to counsel, that motion be and is hereby DENIED, as further set out in order. Signed by Honorable Charles S. Coody on 12/30/10. (djy, )

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Sims v. Astrue (CONSENT) Doc. 22 IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION K IM B E R L Y R. SIMS, P la in tif f , v. M IC H A E L J. ASTRUE, C O M M IS S IO N E R OF S O C IA L SECURITY, D e f e n d a n t. ) ) ) ) ) ) ) ) ) ) ) C IV IL ACTION NO. 3:09cv366-CSC (WO) M E M O R A N D U M OPINION and ORDER O n October 18, 2010, the plaintiff filed a motion for attorney fees pursuant to the E q u a l Justice Act, 28 U.S.C. 2412(d). (Doc. # 19). She seeks an award of attorney fees in the amount of $2,534.50. (Id.) The defendant objects to an award of attorney's fees b e c a u s e the Commissioner argues that his position in this case was substantially justified. Under the Equal Access to Justice Act, a private litigant who prevails against the g o v e rn m e n t is entitled to attorney's fees unless the position of the government was " s u b s ta n tia lly justified" or special circumstances make an award unjust. 28 U.S.C. 2 4 1 2 (d )(1 )(A ). EAJA fees are available only when the government's position is not "substantially justified." Thus, EAJA fees are not available every time a claimant prevails-only when the Commissioner's position lacks "a reasonable basis in law and fact." Pierce v. Underwood, 487 U.S. 552, 566 n. 2, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988). Bergen v. Commissioner of Social Sec. 454 F.3d 1273, 1277 (11th Cir. 2006) "The government's position is substantially justified under the EAJA when it is `ju stif ie d to a degree that would satisfy a reasonable person' i.e. when it has a reasonable b a s is in both law and fact." United States v. Douglas, 55 F.3d 584, 588 (11 th Cir. 1995) (q u o tin g Pierce, 487 U.S. at 565). "The government bears the burden of showing that its p o s itio n was substantially justified." City of Brunswick, Ga. v. United States, 849 F.2d 501, 5 0 4 (11 th Cir.1988). T h e burden of establishing "that the position of the United States was s u b s ta n tia lly justified," 2412(d)(1)(A) indicates and courts uniformly have re c o g n iz e d , must be shouldered by the Government. See, e.g., Pierce v. U n d e r w o o d , 487 U.S. 552, 567, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988); id., a t 575, 108 S.Ct. 2541 (Brennan, J., concurring in part and concurring in ju d g m e n t); Davidson v. Veneman, 317 F.3d 503, 506 (C.A.5 2003); Lauer v. B a rn h a r t , 321 F.3d 762, 764 (C.A.8 2003); Libas, Ltd. v. United States, 314 F .3 d 1362, 1365 (C.A.Fed.2003). See also H.R.Rep. No. 96-1005, at 10 (" [T ]h e strong deterrents to contesting Government action that currently exis[t] re q u ire that the burden of proof rest with the Government."). S c a r b o r o u g h v. Principi ,541 U.S. 401, 414-415 (2004). T h e Commissioner argues that his litigation position was substantially justified b e c a u s e , although he "acknowledges the ALJ's duty to develop the record when the evidence i s incomplete or not available, . . . the record as whole included other updated medical e v id e n c e ." (Def's Res., doc. # 21, at 3-4). The court disagrees that the Commissioner's p o s itio n was substantially justified. It has long been the law of this circuit that when additional tests or x-rays are needed to make an informed decision, it is error for the ALJ to fail to secure that additional medical e v id e n c e . See Reeves v. Heckler, 734 F.2d 519 (11th Cir. 1984) (error for ALJ not to order 2 consultative examination where the evaluation is needed to make an informed decision). Social Security proceedings are inquisitorial rather than adversarial. It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits. Sims v. Apfel, 530 U.S. 103, 110-111 (2000). Moreover, the Commissioner's own regulations require current medical evidence to establish disability. "Your impairment must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques. A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms." 20 C.F.R. 404.1508. The Commissioner's position cannot be substantially justified when he failed to comply with his own regulations to adequately develop the record in this case by securing additional medical evidence about the extent of the plaintiff's physical impairments. Thus, the ALJ erred as a m a tte r of law, and the position of the Commissioner did not have a reasonable basis in law o r fact. Pierce requires that the government's position be reasonable both in fact and law to b e substantially justified. Thus, the court concludes that the Commissioner's position was n o t substantially justified, and the plaintiff is entitled to an award of fees under EAJA. T h e plaintiff seeks fees of $2,534.50. The Commissioner does not challenge any of th e hours expended by counsel as unreasonable or otherwise improper. Accordingly, it is O R D E R E D that, pursuant to the EAJA, the plaintiff's motion for attorney's fees (doc. # 19) be and is hereby GRANTED and the plaintiff be and is hereby awarded fees in the 3 amount of $2,534.50. It is further O R D E R E D that, to the extent that plaintiff's counsel requests that fees should be a w a rd e d to directly to counsel, that motion be and is hereby DENIED. See 28 U.S.C. 2 4 1 2 (d )(2 )(B ) (authorizing the court to award fees to the prevailing party). See also Astrue v . Ratliff, -- S.Ct. --, 2010 WL 2346547 (2010) (the Court unambiguously held that a tto rn e y's fees are awarded to the prevailing litigant, not to prevailing litigant's attorney); R e e v e s v. Astrue, 526 F.3d 732, 738 (11th Cir. 2008) ("attorney's fees are awarded to the p re v a ilin g party, not to the prevailing party's attorney.") Done this 30th day of December, 2010. /s/Charles S. Coody CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE 4

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