Eubanks-Carswell v. Commissioner of Social Security

Filing 35

ORDER granting 29 Motion for Attorney Fees. See order for additional details. Signed by Magistrate Judge Amanda Arnold Sansone on 12/12/2019. (MLM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ARIELLE EUBANKS-CARSWELL,
v.

Plaintiff,

Case No. 8:18-cv-1238-T-AAS

ANDREW SAUL,
Commissioner,
Social Security Administration, 1
Defendant.
______________________________________/
ORDER
Arielle Eubanks-Carswell seeks an award of $5,982.41 in attorney’s fees under
the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d).

(Doc. 29).

The

Commissioner opposes this motion. (Doc. 31)
I.

BACKGROUND
Ms. Eubanks-Carswell protectively applied for Title II Disability Insurance

Benefits and Title XVI Supplemental Security Income on November 13, 2013. (Doc.
22, pp. 1–2). She attributed her disability to bipolar, anxiety, sciatic nerve damage,
vertigo, vision, and colon disease. (Id. at p. 3). Ms. Eubanks-Carswell requested and
received a hearing before an administrative law judge (ALJ), who determined she ha
these severe impairments: status post (s/p) right shoulder arthroscopic repair,
schizophrenia, bipolar disorder, anxiety disorder, and post-traumatic stress disorder.
On June 17, 2019, Andrew Saul became Commissioner of the Social Security
Administration. Consistent with Federal Rule of Civil Procedure 25(d), Mr. Saul is
substituted as a party in Nancy Berryhill’s place.
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(Id. at pp. 2, 4).

Despite these impairments, the ALJ concluded Ms. Eubanks-

Carswell had the residual functional capacity to perform light work, subject to the
limitations in the decision, and Ms. Eubanks-Carswell could perform jobs that existed
in significant numbers in the national economy. (Id. at p. 4). The ALJ held Ms.
Eubanks-Carswell was not disabled. (Id. at p. 5). Ms. Eubanks-Carswell appealed
to the Appeals Council which denied her request for review. (Id. at p. 2). Having
exhausted her administrative remedies, Ms. Eubanks-Carswell timely appealed to
this court. (Doc. 1).
The parties briefed prepared a joint memorandum on the issues. (Doc. 21).
After considering the merits of the parties’ positions, the court ruled for Ms. EubanksCarswell. (Doc. 22, p. 10). The court found the ALJ failed to state how much weight
he gave to Ms. Raquel Findley-Hawthorne, Ms. Eubanks-Carswell’s licensed social
worker.

(Id. at p. 8).

The court recognized the ALJ discussed Ms. Findley-

Hawthorne’s statement. (Id. at pp. 8–9). But the court noted even though the ALJ
need not refer to every piece of evidence, the ALJ must consider all evidence and
articulate the weight given to probative evidence. (Id. at p. 8). The court found the
ALJ should have assigned weight to Ms. Findley-Hawthorne’s opinion because it was
probative evidence. (Id. at pp. 9–10).
Ms. Eubanks-Carswell filed this motion under the EAJA seeking an award of
$5,982.41 in attorney’s fees. (Doc. 29). The motion is supported by counsel’s affidavit
and an itemized schedule of hours and services rendered. (Docs. 24, pp. 4–6; 24-1).
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II.

LEGAL STANDARD
The EAJA states “a court shall award to a prevailing party other than the

United States” reasonable attorney’s fees and costs “incurred by that party in any
civil action . . . brought by or against the United States in any court having
jurisdiction of that action, 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). The prerequisites to an award of fees under the EAJA are: (1)
the claimant is a prevailing party in a non-tort suit involving the United States; (2)
the Government’s position was not substantially justified; (3) the claimant timely
applied for attorney’s fees; (4) the claimant had a net worth of less than $2 million
when the complaint was filed; and (5) no special circumstances would make the award
of fees unjust. 28 U.S.C. § 2412(d).
A court’s order reversing the ALJ’s decision constituted a final order for the
EAJA. Shalala v. Schaefer, 509 U.S. 292, 296 (1993). “In sentence four cases, the
filing period begins after the final judgment (‘affirming, modifying, or reversing’) is
entered by the court and the appeal period has run, so that the judgment is no longer
appealable.” Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991) (citing 28 U.S.C. §
2412(d)(2)(G)).
The word “substantially,” as used in the EAJA means: “‘justified in substance
or in the main’—that is, justified to a degree that could satisfy a reasonable person.”
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
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In Pierce, the Supreme Court

explained “a position can be justified even though it is not correct, and we believe it
can be substantially (i.e. for the most part) justified if a reasonable person could think
it correct, that is, if it has a reasonable basis in law and fact.” Id. at 585 n. 2.
The phrase “position of the United States” includes the Commissioner’s
position in the underlying administrative proceedings and his position in the court
proceedings. Stratton v. Bowen, 827 F.2d 1447, 1449 n. 2 (11th Cir. 1987). “The
government’s success or failure on the merits at each level may be evidence of
whether its position was substantially justified, but that success or failure alone is
not determinative of the issue.” Hadden v. Bowen, 851 F.2d 1266, 1267 (10th Cir.
1988). If the court finds some, but not all of the Commissioner’s positions were
substantially justified then the Commissioner “may be required to pay EAJA fees to
a prevailing party for the award on any claim that was not substantially justified.”
United States v. Jones, 125 F.3d 1418, 1427 (11th Cir. 1997). However, when the
plaintiff’s claims are based on a single set of facts and the issues are intertwined,
then the plaintiff may recover fees for counsel’s work on the entire case. Id. (citing
Haitian Refugee Ctr. v. Meese, 791 F.2d 1489, 1500 (11th Cir. 1986)).
The burden is on the Commissioner to show by a preponderance of the evidence
that his position was substantially justified. White v. United States, 740 F.2d 836,
839 (11th Cir. 1984). The standard is one of reasonableness; the government must
show “its case had a reasonable basis both in law and fact.” See Matthews v. United
States, 713 F.2d 677, 683 (11th Cir. 1983). Simply because the government lost its
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case does not raise a presumption that the government’s position was not
substantially justified. White, 740 F.2d at 839. Nor is the government required to
establish its decision to litigate was based on a substantial probability of prevailing.
Id.
III.

DISCUSSION
The Commissioner does not dispute Ms. Eubanks-Carswell is the prevailing

party or the reasonableness of the requested fees. (Doc. 31). Ms. Eubanks-Carswell
claims her net worth is less than two million dollars. (Doc. 29, ¶ 5). Other than the
Commissioner’s objection, no special circumstances would make an award of fees
unjust. The only issue is whether the Commissioner’s position was substantially
justified.
The Commissioner argues his position at both the administrative and litigation
levels was reasonable under the law and evidence in the record. (Doc. 31, p. 2). The
Commissioner asserts the ALJ did not violate agency policy by failing to assign
weight to Ms. Findley-Hawthorne’s statements and was supported by some Eleventh
Circuit precedent. (Id.). The Commissioner argues the case of McMahon v. Comm’r,
Soc. Sec. Admin., 583 F. App’x 886 (11th Cir. 2014), is persuasive. (Id. at p. 3).
McMahon recognizes the ALJ need not assign and explain weight to statements given
from “other source” opinions. (Id.). The Commissioner asserts the ALJ’s decision
allows a subsequent reviewer to follow the ALJ’s reasoning as to why he found Ms.
Eubanks-Carswell less limited than Ms. Findley-Hawthorne stated because the
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evidence showed Ms. Eubanks-Carswell could still engage in a reduced range of light
work. (Id.).
Ms. Eubanks-Carswell agrees Ms. Findley-Hawthorne’s opinion is an “other
source” opinion but the social security regulations specify the ALJ should consider
“other source” evidence if probative to functional limitations and severity. (Doc. 34,
pp. 1–2). Ms. Eubanks-Carswell argues McMahon is factually different than this case
because Ms. Findley-Hawthorne’s opinion addressed Ms. Eubanks-Carswell’s
functional abilities and that did not occur in McMahon. (Id. at p. 2). Ms. EubanksCarswell argues the court could not follow the ALJ’s reasoning because the court
could not determine whether substantial evidence supported the ALJ’s decision on
other issues which stemmed from the ALJ’s failure to state how much weight was
given to Ms. Findley-Hawthorne’s opinion. (Id. at p. 3).
The ALJ must state with particularity the weight given to different opinions,
including opinions from counselors, and his reasons for doing so. Sharfarz v. Bowen,
825 F.2d 278, 279 (11th Cir. 1987); Ryan v. Heckler, 762 F.2d 939, 941–42 (11th Cir.
1985). The ALJ may reject any opinion if evidence supports a contrary finding, but
he must still articulate reasons for assigning little weight. Caulder v. Bowen, 791
F.2d 872, 880 (11th Cir. 1986). Provided his decision does not broadly reject a claim
for Social Security benefits, the ALJ need not refer to every piece of evidence. Mitchell
v. Comm’r of Soc. Sec., 771 F.3d 780, 782 (11th Cir. 2014). Although it is unnecessary
to refer to every piece of evidence, the ALJ must consider all available evidence and
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articulate the weight given to probative evidence. Id.; Cowart v. Schweiker, 662 F.2d
731, 735 (11th Cir. 1981).
Here, the court found:
the ALJ failed to state how much weight he gave to Findley-Hawthorne’s
testimony. Although the ALJ discusses Findley-Hawthorne’s
statements with respect to Ms. Eubanks-Carswell’s social anxiety,
memory, and concentration problems, the ALJ fails to assign weight to
Findley-Hawthorne’s statements. The ALJ’s failure to assign weight to
this testimony requires remand because Findley-Hawthorne’s opinion is
probative evidence.
Findley-Hawthorne’s testimony is probative evidence because it directly
concerns Ms. Eubanks-Carswell’s residual functional capacity to retain
employment. Findley-Hawthorne interacts with Ms. Eubanks-Carswell
at least three times a week, during which time she observes Ms.
Eubanks-Carswell’s mental state and helps her retain employment.
Findley-Hawthorne keeps track of all Ms. Eubanks-Carswell’s
appointments and drives her to work. Findley-Hawthorne further
testified Ms. Eubanks-Carswell suffers from delusions about seeing a
name on license plates, which causes her great anxiety.
Findley-Hawthorne also testified Ms. Eubanks-Carswell has trouble
maintaining conversations and will often move to a new conversation
without notice. Findley-Hawthorne testified that Ms. Eubanks-Carswell
cannot perform much household work and Ms. Eubanks-Carswell’s
mother supports most of the household. Considering Ms. EubanksCarswell claims that her mental impairments prevent her from working,
the ALJ must articulate with particularity how much weight he gave to
Findley-Hawthorne’s testimony. The ALJ’s failure to state how much
weight he gave to Findley-Hawthorne’s testimony, which is probative of
Ms. Eubanks-Carswell’s alleged mental impairments, requires remand.
Eubanks-Carswell v. Saul, No. 8:18-cv-1238-AAS, 2019 WL 3521999, at *3 (M.D. Fla.
Aug. 2, 2019) (internal citations omitted).

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Since the law requires the ALJ to explain adequately the weight given to
probative evidence, even if designated as “other source” evidence, the ALJ must
specify on the record the weight given. See Cowart, 662 F.2d at 735. Here, the ALJ
did not. The court also provided specific examples of how Ms. Findley-Hawthorne’s
testimony was probative requiring the ALJ to assign specific weight. 2019 WL
3521999, at *3. The ALJ also did not provide evidence that would allow a subsequent
reviewer to follow his reasoning in the opinion making it difficult for this court to
determine if the overall decision was supported by substantial evidence.
While unpublished Eleventh Circuit opinions like McMahon are persuasive,
they are not binding precedent. See 11th Cir. R. 36-2. Here, the court followed
published Eleventh Circuit case law requiring the ALJ to articulate the weight given
to probative evidence. See Mitchell v. Comm’r of Soc. Sec., 771 F.3d 780, 782 (11th
Cir. 2014); Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). Therefore, the
Commissioner was not substantially justified in his position.
IV.

AWARD
As Ms. Eubanks-Carswell is the prevailing party and the position of the United

States was not substantially justified, she is entitled to reasonable attorney’s fees.
Ms. Eubanks-Carswell assigned her rights to EAJA fees to her attorney. (Doc. 24-2).
Attorney’s fees awarded to a claimant under the EAJA can be offset to satisfy the
claimant’s pre-existing debt to the United States. Astrue v. Ratliff, 560 U.S. 586, 589
(2010). Following this order, the United States Department of the Treasury will
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determine whether Ms. Eubanks-Carswell owes a debt to the United States. If Ms.
Eubanks-Carswell has no federal debt, the United States will accept her assignment
of EAJA fees and pay the fees directly to counsel.
In Ms. Eubanks-Carswell’s reply to the Commissioner’s response to the motion
for attorney’s fees, Ms. Eubanks-Carswell’s counsel states she spent 3.1 hours
preparing the reply brief. (Doc. 34). Even though Ms. Eubanks-Carswell’s counsel
expended additional time, the court finds only the hours and amount specified in the
amended motion appropriate. Thus, Ms. Eubanks-Carswell’s motion for attorney’s
fees under the EAJA (Doc. 29) is GRANTED. Ms. Eubanks-Carswell is awarded
$5,982.41 in attorney’s fees.
ORDERED in Tampa, Florida on December 12, 2019.

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