Harrell v. Astrue

Filing 29

ORDER denying 25 Motion for Attorney Fees (EAJA). Signed by Magistrate Judge Katherine P. Nelson on 3/19/2014. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
AARON HARRELL,
Plaintiff,
v.
CAROLYN COLVIN, Acting
Commissioner of Social Security,
Defendant.

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) CIVIL ACTION NO. 2:13-00056-N
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ORDER

This action is before the Court1 on an application (doc. 25) filed by the
plaintiff, Aaron Harrell, for attorney fees under the Equal Access To Justice Act, 28

U.S.C. § 2412, and the response in opposition (doc. 27) filed by the Commissioner
of Social Security.2 The Commissioner does not contest the reasonableness of the
requested attorney’s fees, but instead contends that no attorney’s fees should be
awarded in this matter because his position in this case was substantially justified
(doc. 27 at 3-4) and that, if the Court determines otherwise, any attorney’s fees
awarded should be awarded directly to the plaintiff (id. at 4-5). For the reasons
explained below, and pursuant to 28 U.S.C. § 2412(d)(1)(A), the Court finds that

1

Pursuant to the consent of the parties (doc. 19), this action has been referred to the
undersigned Magistrate Judge to conduct all proceedings and order the entry of judgment in
accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. See Doc. 21.
2

Plaintiff was given an opportunity to reply (doc. 28) to the Commissioner’s opposition
but neither filed a reply nor requested an extension of time within which to do so.

the Commissioner’s position in this litigation was substantially justified, and
accordingly, the plaintiff’s application for attorneys’ fees under the EAJA must be
DENIED.3
I.

Underlying Determination.

In this case, the Court found that remand was necessary because the ALJ
erred in discounting the opinion of plaintiff’s examining consultant, Donald W.
Blanton, Ph.D., and did not properly reject plaintiff’s contention that he satisfied
the requirements of Listing 12.05C. (Doc. 23 at 23-30, 30-32). On this basis, the
Court concluded that the Commissioner’s denial of benefits was not supported by
substantial evidence. (Id. at 32).
II.

The Substantial Justification Standard.

The Equal Access to Justice Act requires a district court to “award to a
prevailing party . . . fees and other expenses . . . incurred by that party in any civil
action . . . , including proceedings for judicial review of agency action, brought by
or against the United States . . . , 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).
3

The plaintiff’s application asserts only a claim for attorney’s fees. See Doc. 25 at 1
(Calculating attorney’s fees only.); Doc. 25-2 (Attorney’s time entries). The Court points this out
because, even if a court determines that the Commissioner’s position is substantially justified, a
plaintiff is still entitled to recovery of costs. See e.g., Leonard v. Commissioner of Soc. Sec.,
2009 WL 5908804, at *1 (M.D. Fla. Feb. 23, 2010) (“The EAJA authorizes the recovery of three
types of litigation expenditures. First, under 28 U.S.C. § 2412(a), a prevailing party opposing the
United States in ‘any civil action’ ‘may be awarded’ costs as delineated in 28 U.S.C. § 1920.”)
(quoting Jean v. Nelson, 863 F.2d 759, 776 (11th Cir. 1988)).

2

While “‘[s]ubstantially justified’ is one of the myriad phrases in the law
that has no precise or fixed definition[, t]he Supreme Court has said that it means
‘justified in substance or in the main.’” Grieves v. Astrue, 600 F. Supp. 2d 995,
999 (N.D. Ill. 2009)(quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). “A
position that is ‘substantially justified’ must have a ‘reasonable basis both in law
and in fact.’” (Id., quoting Pierce, 487 U.S. at 565); cf. Golembiewski v. Barnhart,
382 F.3d 721, 724 (7th Cir. 2004)(a position is substantially justified if a
“reasonable person could believe the position was correct”).
EAJA decisions necessarily involve exercises of discretion because
of the sheer impracticability of formulating a rule of decision in such
cases. Questions that arise under the Act, like many that arise in
litigation generally, are not amenable to regulation by rule because
they involve multifarious, fleeting, special, narrow facts that utterly
resist generalization—at least, for the time being.
Grieves, 600 F. Supp. 2d at 999 (internal citations and quotation marks omitted
and other modifications to original).
It is also essential to recall that “a position can be justified even
though it is not correct,” Pierce, 487 U.S. at 566, n.2, and “[the
government] could take a position that is substantially justified, yet
lose [on the merits].” Id. at 569. Analysis of questions of substantial
justification must take into account the government’s position in the
underlying action and the litigation posture it took while defending
the validity of that action in court. 28 U.S.C. § 2412(d)(2)(D). But,
substantial justification should not be confused with the “substantial
evidence” standard that applies to a court’s initial review of the case.
Indeed, the Supreme Court has cautioned that consideration
of a fee petition “‘should not result in a second major litigation.’”
Pierce, 487 U.S. at 563. Thus, an EAJA petition requires the court to
revisit the legal and factual circumstances of this case from a
different perspective—the elusive standard of substantial
justification—than it did in reviewing the record on the initial goround to determine whether there was substantial evidence to
3

support the conclusion.
Id. at 1000 (internal citations modified and some omitted).
III.

Under the facts of this case, the position of the Commissioner in this
litigation was substantially justified.

Harrell has offered no basis or explanation for his contention that the
Commissioner’s position in this case “was not substantially justified” other than
the fact that “he is the prevailing party in this action.” (Doc. 25 at 2). The
Commissioner has not only discussed the inconsistencies relied on by the ALJ to
discount Dr. Blanton’s diagnosis of “Mild Mental Retardation (Tr. 284),” namely
that Harrell “was alert and oriented to time, place, person, and situation, and
demonstrated logical thoughts and conversation, intact associations, fair judgment,
and no psychomotor retardation (Tr. 282),”4 but has referred to the evidence
demonstrating Harrell’s ability to “communicate his past medical history and his
symptoms to physicians well enough to receive treatment,” to perform his own
self care, cook meals, shop, handle money, have a driver’s license, spend time
interacting with relatives, marry and have four children, as well as accrue a
significant work history from 1975 to 2005. (Id. at 26, 31).5 Harrell has not
attempted to show that this evidence could not lead a reasonable person to believe
that Harrell’s impairments do not meet or equal Listing 12.05C.
4

See Doc. 27 at 4; Doc. 23 at 24-25.

5

Although the Court raised a question concerning the degree of significance to be given
Harrell’s work history in light of his reported income (doc. 23 at 26-27 and n. 16), the ALJ was
still entitled to give some significance to that work history because he was employed in some
capacity every single year during that period. (Tr. 116).

4

This Court found the evidence to be insufficient principally because the
ALJ did not question the validity of the I.Q. score. On this basis, the Court found
that Dr. Blanton’s diagnosis of “Mild Mental Retardation was uncontroverted by
any other examining mental health professional and supported by objective
testing. (Doc. 23 at 23-30). Dr. Blanton’s opinion did not, however, conclusively
establish Harrell’s entitlement to a Listing 12.05C designation. (Doc. 23 at 31).
Consequently, the Court now finds that, although the ALJ’s decision in this case
was not supported by substantial evidence, her decision was nonetheless
substantially justified by Harrell’s own testimony and uncontested abilities.
CONCLUSION
For the reasons stated above, it is ORDERED that Harrell’s application for
attorney’s fees under the Equal Access to Justice Act is hereby DENIED.
DONE this

19th day of March, 2014.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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