Claiborne v. Colvin

Filing 24

MEMORANDUM. Signed by Magistrate Judge Stephanie A Gallagher on 10/1/2015. (nd2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

JESSICA M. CLAIBORNE,
Claimant,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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Case No. SAG-14-1918

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MEMORANDUM
This matter is before the Court by the parties’ consent. (ECF Nos. 3, 7). Jessica M.
Claiborne has filed a motion for attorney’s fees pursuant to both the Equal Access to Justice Act,
28 U.S.C. § 2412, (“EAJA”) and the Social Security Act, 42 U.S.C. § 406(b). (ECF No. 20).
The Commissioner has opposed Ms. Claiborne’s motion, contending that the government’s
position in this case was substantially justified. (ECF No. 23). For the reasons set forth below,
Ms. Claiborne’s Application for Attorney’s Fees is GRANTED.
I. BACKGROUND
Jessica Claiborne applied for Supplemental Security Income (“SSI”) on October 21,
2010, alleging that she was disabled due to affective disorders, asthma, generalized anxiety
disorder, depression, recurrent psychotic features, posttraumatic stress disorder (“PTSD”), and
attention deficit hyperactivity disorder (“ADHD”). (Tr. 60, 72). Her claim was denied initially
and upon reconsideration. (Tr. 85-89, 92-94). A hearing was held on December 5, 2012, before
an Administrative Law Judge (“ALJ”). (Tr. 40-58). Following the hearing, the ALJ determined
that Ms. Claiborne was not disabled within the meaning of the Social Security Act during the
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relevant time frame. (Tr. 23-34). The Appeals Council denied Ms. Claiborne’s request for
review. (Tr. 4-9).
Ms. Claiborne next sought relief from this Court.

(ECF No. 1).

In her summary

judgment motion, Ms. Claiborne raised four arguments: (1) that the ALJ failed to assess her
psychiatric impairments properly; (2) that the ALJ presented an inadequate hypothetical to the
VE; (3) that the ALJ erred in making an adverse credibility assessment; and (4) that the ALJ did
not properly assess Ms. Claiborne’s activities of daily living. (ECF No. 14). In addition, on
March 24, 2015, the Court alerted the parties to a potential issue under the Fourth Circuit
decision of Mascio v. Colvin, 780 F.3d 632, which was decided on March 18, 2015, as Ms.
Claiborne’s case was pending. (ECF No. 17). Pertinent to this case, Mascio held that restriction
to simple or unskilled work does not account for a claimant’s moderate limitation in
concentration, persistence, and pace. Id. at 638. The Fourth Circuit emphasized the distinction
between the ability to perform simple tasks and the ability to stay on task. Id. In the instant
case, the ALJ found that Ms. Claiborne had a moderate limitation in her ability to maintain
concentration, persistence, or pace, but the only mental limitation appearing in her RFC
assessment stated that, “she cannot work with the general public or have more than occasional
interaction with supervisors and co-workers.” (Tr. 30). Accordingly, the Court’s March 24,
2015 letter to the parties granted the Commissioner additional time to review the case to
determine whether consent remand was required under Mascio, or whether she instead wished to
file a supplemental brief addressing the apparent Mascio issue.

(ECF No. 17).

The

Commissioner filed a supplemental brief on April 20, 2015. (ECF No. 18). Ms. Claiborne was
also granted additional time to file a response to any supplemental brief, but she did not file a
response. See id.

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On May 1, 2015, this Court vacated the ALJ’s decision and remanded this case for
further proceedings.

(Letter Op. 5, ECF No. 19).

The Court did not find merit in Ms.

Claiborne’s arguments, but remanded the case based on a finding that the ALJ’s RFC assessment
was inadequate under Mascio. Id. at 2, 5. At that time, the Court did not express an opinion as
to whether Ms. Claiborne should be considered eligible for SSI. Rather, the Court noted that,
“Without understanding why the ALJ believed Ms. Claiborne to have a moderate limitation in
concentration, persistence, or pace, as opposed to a mild limitation or no limitation, I cannot
ascertain whether the moderate limitation found by the ALJ would warrant any RFC restrictions
in Ms. Claiborne’s ability to perform or sustain even unskilled work.” Id. at 4.
Ms. Claiborne filed the instant Application for Attorney’s Fees on June 2, 2015. (ECF
No. 20). Ms. Claiborne seeks $1,545.00 for her counsel, Alan J. Nuta, Esq., which represents
8.10 hours of attorney work time at an hourly rate of $175.00, and 2.55 hours of paralegal work
time at an hourly rate of $55.00. (Pl.’s Appl. for Atty’s Fees 2-4, ECF No. 20).
II. LEGAL STANDARDS
A party who prevails in litigation against the United States is entitled to EAJA attorney
fees if the government’s position was not substantially justified and no special circumstances
make an award unjust. 28 U.S.C. § 2412(d)(1); Crawford v. Sullivan, 935 F.2d 655, 656 (4th
Cir. 1991). To receive attorney’s fees, the prevailing claimant must submit a fee application and
an itemized statement of fees to the court within 30 days of final judgment. Id. “The Supreme
Court has approved a ‘generous formulation’ to determine who are prevailing parties:
‘[P]laintiffs may be considered ‘prevailing parties’ for attorney’s fees purposes if they succeed
on any significant issue in litigation which achieves some of the benefit the parties sought in

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bringing suit.’” Hyatt v. Heckler, 807 F.2d 376, 382 (4th Cir. 1986) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983)).
The Commissioner bears the burden of proving that her position was substantially
justified, thus precluding an award of attorney fees and costs under the EAJA. Thompson v.
Sullivan, 980 F.2d 280, 281 (4th Cir. 1992). The Commissioner’s position must be substantially
justified in both fact and law.

Id.

(“In other words, favorable facts will not rescue the

government from a substantially unjustified position on the law; likewise, an accurate recital of
law cannot excuse a substantially unjustified position on the facts.”); see also Pierce v.
Underwood, 487 U.S. 552, 562-63 (1988). When evaluating whether the government’s position
was substantially justified, the court must examine the Agency’s conduct and posture both before
and during litigation. See Comm’r, I.N.S. v. Jean, 496 U.S. 154, 158 (1990); Crawford v.
Sullivan, 935 F.2d 655, 657 (4th Cir. 1991).
A substantially justified position is one that is “more than merely undeserving of
sanctions for frivolousness.”

Pierce, 487 U.S. at 566.

To be substantially justified, the

government’s position must be “‘justified in substance or in the main’—that is, justified to a
degree that could satisfy a reasonable person.”

Id. at 565.

A court’s ruling against the

government is not determinative, as the Commissioner “is not automatically liable for attorney’s
fees every time [s]he loses a case.” Crawford, 935 F.2d at 657 (relying on Smith v. Heckler, 739
F.2d 144, 147 (4th Cir. 1984)).
III. ANALYSIS
The Commissioner objects to Ms. Claiborne’s request for attorney’s fees for her counsel,
arguing that attorney’s fees are unwarranted because the government’s position was substantially
justified. Thus, this Court must evaluate whether an award of attorney’s fees is proper under the

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EAJA. A party is entitled to EAJA attorney fees if: (1) the claimant is a party who prevailed in
litigation against the United States; (2) the government’s position was not substantially justified;
(3) no special circumstances make an award unjust; and, (4) the claimant’s fee application is
submitted to the court within 30 days of final judgment and is supported by an itemized
statement. 28 U.S.C. § 2412(d)(1); Crawford v. Sullivan, 935 F.2d 655, 656 (4th Cir. 1991).
Ms. Claiborne easily meets three of these four requirements. Regarding the first element
of the statutory test, Ms. Claiborne qualifies as a prevailing party for purposes of awarding EAJA
fees because of the Supreme Court’s “generous formulation” of who constitutes a prevailing
party. By winning remand of her case, Ms. Claiborne has succeeded on a significant issue in
litigation and has achieved some of the benefit she sought.
With respect to the third element, the parties do not dispute whether any special
circumstances exist that would make an award of attorney’s fees unjust. As a result, the Court
finds that no such circumstances exist.
Ms. Claiborne’s request for attorney’s fees is also timely, and therefore satisfies the
fourth element of the statutory test. The statute requires that a prevailing party’s request for
attorney’s fees be submitted to the court within thirty days of “final judgment of the action.” 28
U.S.C. § 2412 (d)(1)(B). The Supreme Court has noted that
An EAJA application may be filed until 30 days after a judgment becomes “not
appealable”—i.e., 30 days after the time for appeal has ended. Rule 4(a) of the
Federal Rules of Appellate Procedure establishes that, in a civil case to which a
federal officer is a party, the time for appeal does not end until 60 days after
“entry of judgment” . . . .
Shalala v. Schaefer, 509 U.S. 292, 302 (1993); see also Melkonyan v. Sullivan, 501 U.S. 89, 96
(1991) (“[A] ‘final judgment’ for purposes of 28 U.S.C. § 2412(d)(1)(B) means a judgment
rendered by a court that terminates the civil action for which EAJA fees may be received. The
30-day EAJA clock begins to run after the time to appeal that ‘final judgment’ has expired.”)
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Ms. Claiborne submitted her motion for attorney’s fees on June 2, 2015, thirty-two days after this
case was remanded to the Agency for further proceedings. Ms. Claiborne’s motion falls well
within the time period announced by the Supreme Court.
The only question remaining is whether the government’s position in the case was
substantially justified. As noted above, the government’s position must be substantially justified
on both the facts and the law. Thompson, 980 F.2d at 281. This Court remanded this case not
because the facts of this case demand that Ms. Claiborne receive benefits, but because the ALJ
failed to properly explain how her RFC adequately accounted for her moderate limitation in
concentration, persistence, or pace under Mascio. 780 F.3d at 638; (Letter Op. 3-5, ECF No. 19).
The errors identified relate to how the ALJ crafted her opinion, not to the ALJ’s analysis of the
facts in the record. Id. at 4 (“However, what is lacking in the instant case is any explanation of
why the ALJ assessed a moderate limitation in concentration, persistence, or pace…. Without an
understanding of why the ALJ reached contradictory conclusions about whether Ms. Claiborne
does or does not have moderate difficulties with concentration, persistence, or pace, I must
recommend that the Court remand the case to the Commissioner….”).

Accordingly, the

government’s position was not substantially justified in law, at least not after Mascio was
decided.
Under Mascio, the ALJ has a duty to provide for a claimant’s moderate limitation in
maintaining concentration, persistence, or pace in terms of corresponding work-related functions
in the claimant’s RFC analysis, or, in the alternative, the ALJ must explain why the moderate
limitation does not translate to functional limitations in the RFC assessment. 780 F.3d at 638. In
either case, the ALJ must adequately account for her finding at step two of the sequential

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analysis that a claimant experiences a moderate limitation in maintaining concentration,
persistence, or pace.
Contrary to the government’s assertions, the ALJ in this case failed in her duty of
explanation under Mascio.

As stated in this Court’s May 1, 2015 letter opinion, “The

conclusions at step two are supposed to represent reasoned consideration of all of the pertinent
evidence, and are not simply an opportunity to give the claimant the benefit of the doubt at one
step while taking it away at the next step.” (Letter Op. 4, ECF No. 19).

The ALJ’s analysis of

Ms. Claiborne’s limitation in concentration, persistence, or pace at step two stated, “Ms.
Claiborne stated that she has difficulty concentrating and remembering. However, she is able to
live alone, perform housework, cook, do laundry, and shop for groceries.” (Tr. 29). Despite this
finding, the ALJ’s subsequent discussion of Ms. Claiborne’s mental limitations in her RFC
assessment stated that Ms. Claiborne did not “demonstrate[] difficulties with concentration or
ability to function in a work like setting.”

(Tr. 32).

Without further explanation of the

discrepancy in these findings, the ALJ did not adequately address Ms. Claiborne’s moderate
limitation in concentration, persistence, or pace under the parameters of Mascio. Furthermore,
the government was given the opportunity to determine whether consent remand was required
under Mascio, and declined to do so. See (ECF Nos. 17, 18). As a result, the government’s
position in this case was not substantially justified in the law.
The government contends that Ms. Claiborne’s counsel should not receive fees, or should
receive reduced fees, because the arguments he submitted on her behalf did not succeed. It is
true that Ms. Claiborne prevailed not because of her attorney’s arguments, but because of the
intervening Mascio decision. However, had her attorney not pressed her appeal, she would have
been unable to avail herself of the Mascio ruling. Moreover, Counsel’s requested fee appears to

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be reasonable and well within, and even below, other attorney’s fees awarded by this Court
under the EAJA for Social Security cases. See, e.g., Smith v. Colvin, Civil No. SAG–14–4030
(awarding $1,435.00 on September 3, 2015); Bracey v. Colvin, Civil No. SAG–14–3847
(awarding $1,960.00 on September 3, 2015); Link v. Colvin, Civil No. SAG–14–2853 (awarding
$3,208.97 on August 19, 2015); Rohrback v. Colvin, Civil No. SAG–14–3436 (awarding
$1,836.00 on August 7, 2015); Miller v. Colvin, Civil No. SAG–14–2063 (awarding $2,046.37
on June 30, 2015). In those circumstances, I find no reason to reduce the requested fee.
IV. CONCLUSION
Based on the foregoing, the Court GRANTS Ms. Claiborne’s Application for Attorney’s
Fees. A separate order follows.
Dated: October 1, 2015

/s/
Stephanie A. Gallagher
United States Magistrate Judge

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