Grant v. Commissioner of Social Security
ORDER granting 26 Motion for Attorney Fees. Signed by Magistrate Judge Jane M. Virden on 6/15/17. (ncb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
CURTIS LEE GRANT
COMMISSIONER OF SOCIAL SECURITY
ORDER ON PETITION FOR ATTORNEY’S FEES
Before the court is Plaintiff’s petition  for attorney’s fees pursuant to the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). In these proceedings Plaintiff sought
judicial review of the Social Security Commissioner’s final decision denying a claim for
benefits. By Judgment  dated March 23, 2017, this court remanded this case to the
Commissioner for further proceedings. Plaintiff now seeks attorney’s fees in the amount of
$4,198.92 for twenty-two hours of attorney time before this court at a rate of $190.86 per hour
under the EAJA on the grounds that he was the prevailing party and the Commissioner’s position
was not “substantially justified.” The Commissioner, on the other hand, opposes any award of
fees on the sole ground that her position was “substantially justified.” As explained in more
detail below, the court finds the Commissioner’s arguments are to no avail and that Plaintiff is
entitled to the award requested.
The Equal Access to Justice Act provides for the award of court costs and attorney's fees
to the “prevailing party” in a judicial review of agency action, unless the position of the United
States was “substantially justified” or “special circumstances” would make an award unjust. 28
U.S.C. § 2412(d)(1)(A). A party who wins a remand order in a social security disability case is a
“prevailing party” under the EAJA. Rice v. Astrue, 609 F.3d 831, 833–34 (5th Cir. 2010); Baker
v. Bowen, 839 F.2d 1075, 1081 (5th Cir. 1988). Here, of course, there is no dispute that Plaintiff
was the prevailing party. And, the Commissioner raises no special circumstances that would
make an award of fees unjust. Accordingly, the court need only address the issue of whether the
Commissioner’s position was “substantially justified.”
The Commissioner’s main contention is her position was “substantially justified” because
Plaintiff did not allege his hypertension was disabling in his original brief before the court but,
instead, only argued the issue on supplemental briefing ordered by the court.
I believe it’s helpful to consider the findings made by the court. As recited in the Final
Judgment–in pertinent part–the court found:
[T]he ALJ’s residual functional capacity (“RFC”) determination is not supported
by substantial evidence in the record. Most notably, in 2011 during a consultative
examination, the claimant was warned by Dr. Jim Adams not to physically exert
himself until after he had seen a doctor regarding his extremely high blood
pressure, which was 230/120 and 205/110 that day. Furthermore, the record
contains findings of consistently high blood pressure readings well into 2014;
and, indeed, the ALJ concluded the claimant’s hypertension was severe and
uncontrolled by medications. Nevertheless, the ALJ found, among other things,
the claimant could perform work at all levels of exertion.
The record in this case does not clearly establish what the claimant can do in the
way of work related activities despite suffering from uncontrolled high blood
pressure. Indeed, the ALJ did not have the benefit of any medical provider’s
assessment of the claimant’s functional capacity. And, because the record does
not lend itself to a commonsense judgment of the claimant’s physical abilities, the
court finds the ALJ failed to fully develop the record with regard to the claimant’s
hypertension. See, e.g., Newsome v. Barnhart, No. Civ.A.3:03-CV-3030-D, 2004
WL3312833, at *3-4 (N.D. Tex. Oct. 8, 2004). This failure prejudiced the
claimant, considering that additional evidence in the way of a physician’s
assessment of the claimant’s functional capacity may have changed the result.
In order to be substantially justified, the Commissioner’s position must have a reasonable
basis in law and in fact. Pierce v. Underwood, 487 U.S. 552, 565 (1988); Broussard v. Bowen,
828 F.2d 310, 312 (5th Cir. 1987). The government has the burden of proving its position was
substantially justified at every stage of the proceedings. Davidson v. Veneman, 317 F.3d 503,
506 (5th Cir. 2003) (citing Herron v. Bowen, 788 F.2d 1127, 1130 (5th Cir. 1986)). See also
Flores v. Shalala, 49 F.3d 562, 569 (9th Cir. 1995) (stating the government must show that it
was substantially justified with respect to the issue on which the court based its remand). The
ALJ’s decision is part of the agency’s position and must be substantially justified. Cummings v.
Sullivan, 950 F.2d 492, 497 (7th Cir. 1991); Herndon v. Comm’r of Soc. Sec., No. 3:08-CV-21WAP-DAS, 2009 WL 3644892, at * 2 (N.D. Miss. Oct. 30, 2009). Cf. 28 U.S.C. §
2412(d)(1)(B) (“Whether or not the position of the United States was substantially justified shall
be determined on the basis of the record[,]” which includes the administrative agency record on
which the civil action is based.). See also Russell v. National Mediation Board, 775 F.2d 1284,
1285-88 (5th Cir. 1985) (holding that the phrase “position of the United States” in the EAJA
encompasses the government’s position during administrative proceedings and litigation).
Therefore, the Commissioner’s litigation position (alone) before the district court is not
determinative of the outcome of the substantial justification inquiry. See id. at 1288. In this
case, the Commissioner has failed to show substantial justification for both the ALJ’s
determination of the Plaintiff’s RFC without the support of a doctor’s opinion and it’s arguments
made before this court.
First, while the court acknowledges Plaintiff did not focus on the specific impairment of
hypertension in his initial brief, he did raise this issue in his disability application and raised the
broader issue of lack of substantial evidence to support the ALJ’s RFC determination in his
original brief before this court. Moreover, in an effort to reach a just resolution in these nonadversarial proceedings, this court provided both the claimant and the Commissioner an
opportunity to fully brief the specific issue of the ALJ’s RFC determination as it related to any
failure of the ALJ to fully develop the record with regard to the claimant’s uncontrolled
Next, this court essentially determined this case to be one in which the ALJ “played
doctor” in contravention of well-established law in this Circuit. As pointed out in the court’s
ruling, the record did not lend itself to a commonsense determination of the claimant’s RFC as
there was no medical assessment of the claimant’s exertional limitations from a physician. See,
e.g., Newsome v. Barnhart, No. Civ.A. 3:03-CV-3030-D, 2004 WL3312833, at *3-4 (N.D. Tex.
Oct. 8, 2004). Ultimately, the ALJ did not have sufficient information to determine the effect of
the claimant’s hypertension on his work-related abilities, and the claimant was prejudiced.
Finally, defendant’s insistence upon arguing in her supplemental brief, at the reconvened
hearing, and now in her response to Plaintiff’s fee petition that the claimant’s hypertension was
controlled and that Plaintiff had white coat syndrome is perplexing especially in light of the fact
that the ALJ expressly found the claimant’s hypertension was his only severe impairment and
not fully controlled by medication, and there is no definitive diagnosis of white coat syndrome in
the claimant’s medical records. Likewise, defendant’s argument that the claimant did not
regularly seek treatment for his hypertension is baffling because there was no reliance by the
ALJ for his decision upon an alleged failure of the claimant to seek treatment. Indeed, the
medical evidence in this record is replete with notations of the claimant’s hypertension being
followed by his treaters and his being prescribed and taking medication for it. Ultimately, the
conclusion that Plaintiff’s hypertension simply was not responding to the prescribed treatment
Because the Commissioner’s position was not substantially justified, and she has
provided no other basis for challenging Plaintiff’s fee request, the Court finds the requested fee
is reasonable and no special circumstance would make an award of the fees requested unjust.
THEREFORE, IT IS ORDERED:
That the Commissioner shall promptly pay to the claimant, for the benefit of his counsel,
a total of $4,198.92.
This 15th day of June, 2017.
/s/ Jane M. Virden
U. S. MAGISTRATE JUDGE
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