NEVINS v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Chief Judge Jose L. Linares on 8/2/2017. (JB, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SEAN PATRICK NEVINS,
Civ. Action No.: 16-5765 (JLL)
COMISSIONER Of SOCIAL SECURITY,
LINARES, Chief District Judge.
This matter comes before the Court by way of Plaintiffs Motion for Attorney’s fees and
Costs pursuant to the Equal Access to Justice Act, 28 U.S.C.
§ 2412(d). (ECF No. 17-1).
Defendant has opposed this Motion. (ECF No. 20). The Court has considered the submissions
made in support of and in opposition to the Motion and decides this matter without oral argument
pursuant to Rule 78 of the federal Rules of Civil Procedure. For the reasons set forth below, the
Plaintiffs Motion is denied.
Plaintiff Sean Patrick Nevins had previously received Child’s SSI and was up for re
evaluation as an adult for disability insurance benefits from the Social Security Administration in
March 2012. He first received Child’s SSI eleven days after his birth on July 30, 1993, after he
was found to suffer Spina Bifida, Arnold Chiari Malformation, and other related disorders. (See
R. 6:3 at 67). His benefits were renewed when he was ten on the same grounds. (Id.). In 2012,
he was deemed no longer disabled and thus ineligible to receive benefits as an adult because he
“R.” refers to the Administrative Record, which uses continuous pagination and can be found at ECF No. 6.
could perform the full range of sedentary work. (See R. 6:4 at 7$). At Plaintiffs request, a hearing
was held on October 16, 2014 to review his application de novo. (Id. at $1).
Nevins was 21 years old at the time of the hearing and was enrolled in his second year at
community college where he was pursuing his Associate’s Degree. (Id. at 40, 42). He appeared
before the administrative law judge (“AL’), Luis M. Catanese, without representation. AU began
the hearing by introducing himself and the reporter. (R. at 36). He then addressed Plainitffs lack
AU: Now, Mr. Nevins, I see you are here by yourself. You don’t have like an
attorney or any legal representative to assist you?
AU: I have the duty to inform you that you have the right to have such an individual
to help represent you during your hearing. You don’t have to have one, but if you
desire, usually these people are very well versed in our rules and regulations, and they
know how to present evidence and make arguments on your behalf. Usually the way
it works, is they, generally, don’t take an up-front fee. They usually get a contingent
fee. In your case, it’s a little different, because you are already entitled to benefits.
AU: Generally, they will do that in cases where someone is just applying for the first
time for benefits. $o, you know, it’s really your choice how you wish to proceed. If
you feel comfortable going forward by yourself. I’d be happy to hold your hearing
this afternoon. If you have any desire to see if you can find an attorney or legal
representative to help you, what I would do is postpone this afternoon’s hearings, but
only for the purpose of allowing you to try and get an attorney or a representative.
CLMT: Okay. I guess I will just continue with our hearing.
AU: You feel comfortable going forward?
AU: Okay. So, I will find that you waive your right to have a representative during
(Id. at 36-37 (as set forth in the original transcript)). There was no further mention of an attorney
during the hearing.
AU determined that Plaintiff was no longer eligible for benefits in a decision issued on
January 1, 2015 (R. at 1 $). He concluded that Plaintiff has four severe impairments: 1) Spina
Bifida; 2) Arnold Chiari Malforrriation; 3) asthma; and 4) morbid obesity (Id. at 20 (citing 20
§ 416.920(c))), but did not have “an impairment or combination of impairments that meets
or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
(R. at 20 (citing 20 C.F.R. §sS 4 16.920(d), 416.925, 416.926)). Thus, AU concluded
that Plaintiff has “residual functional capacity to perfonri sedentary work as defined in 20 C.F.R.
416.967(a) except he can only occasionally climb ramps and stairs, and never climb ladders, ropes,
or scaffolds.” (R. at 23). The residual functional capacity (“RFC”) also accounts for Nevins’
limited ability to “balance, stoop, kneel, crouch, and crawl” and his need to avoid “exposure to
pulmonary irritants.” (Id.).
Plaintiff, without the aid of an attorney, requested an appeal of the decision. On July 2$,
2016 the Appeals Council held that were no grounds for review. (R. at 1). With the aid of an
attorney, Plaintiff then appealed to this Court. (Id.). On June 5, 2017 this Court reversed and
remanded the decision of AU on the grounds that AU failed to obtain a valid waiver of Nevins’
right to representation at the administrative hearing. Plaintiff now moves for attorney’s fees and
costs from Defendant. Plaintiff seeks $6,376.75 as compensation for 32.5 billable hours at a rate
of approximately $196.21 per hour. (See ECF No. 17-4). Defendant opposes this Motion, arguing
that its position before this Court was substantially justified and thus it is precluded from paying
attorney’s fees under EAJA. (ECF No. 20 at 5). Alternatively, Defendant argues that even if
Plaintiffs Motion is granted, the award should be reduced to reflect 18.5 hours instead of the
proposed 32.5 hours. (Id. at 17).
The Equal Access to Justice Act, 2$ U.S.C. 2412(d) (“EAJA”), provides that a Court shall
award reasonable attorney’s fees to a prevailing party in any civil action against the United Sates,
unless the Court finds that the position of the United States was substantially justified or special
circumstances make an award unjust. 2$ U.S.C.
Whether or not the position of the United States is substantially justified shall be
determined on the basis of the record (including the record with respect to the action or
failure to act by the agency upon which the action is based) which is made in the civil
action for which the fees and other expenses are sought.
The government has the burden to establish that its position was substantially justified. See
National Resources Defense Council, Inc. v. US.E.F.A., 703 F.2d 700, 712 (3d Cir. 1983).
According to the Supreme Court, the government’s position is substantially justified if it is
‘justified in substance or the main- that is, justified to a degree that could satisfy a reasonable
person.” Fierce v. Underwood, 487 U.S. 552, 565 (1988). The government’s position can be
justified even if it is incorrect as long as it has a “reasonable basis in law and fact.” Fierce, 487
U.S. 556 n.2. As such, in order for the government to meet its burden that its position was
substantially justified the govermTlent must establish “(1) reasonable basis in truth for facts alleged;
(2) reasonable basis in law for the theory it compounded; and (3) a reasonable connection between
facts alleged and the legal theory advanced.” McFhaul e. Astrtte, 2011 U.S. Dist. LEXIS 17784,
*5 (D.N.J. Feb. 23, 2011) (not selected for publication) (citing Cruz v Comm ‘r of Soc. Sec., 630
F.3d 321 (3d Cir. 2010)).
The Court finds that the government was substantially justified in opposing Plaintiff’s
appeal, and, thus, need not pay Plaintiffs attorney’s fees. While this Court ultimately found that
ALl failed to obtain an intelligent and knowing waiver of Plaintiff s right to counsel, AU’s efforts
to obtain the waiver were not clearly erroneous.
Precedent shows that an AU must obtain a valid waiver of a claimant’s right to counsel
prior to commencing the administrative hearing. Vance v. Heckler, 579 F. Supp. 318, 321 (N.D.
Ill. 1984). As this Court noted in its June 2017 Opinion, “[t]he infonnation necessary to ensure an
intelligent and knowing waiver of counsel includes an explanation of the valuable role that an
attorney could play in the proceedings, the possibility of free counsel, and the limitations on
attorney’s fees to 25 percent of any eventual awards.” (ECF No. 15 at 4) (quoting Vctnce, 579 F.
Supp. at 321). Notably, ALl attempted to infonn Plaintiff of his rights, but fell short of Third
Circuit precedent by failing to specifically address the 25% cap on attorney’s fees and the
possibility of free counsel. (Id.) (citing Hr’g. at 37). The Court also felt compelled to mention
that AU may have confused Plaintiff about his right to an attorney when he said “[i]n your case
it’s a little different, because you are already entitled to benefits.” (ECF No. 15 at 5) (citing R. at
This, without more, inight suggest that the Government’s position was not substantially
justified. However, the Government relied on two cases from the Third Circuit in support of its
position that written notice on its own was sufficient to infonn claimants about their right to an
attorney. (ECF No.20 at 10) (citing Phifer v. Comm ‘r ofSoc. Sec., 84 F. App’x 189, 190 (3d Cir.
2003); Boyd v. Bai-nhart, 9$ F. App’x 146, 147 (3d Cir. 2004)). While the Court ultimately
i-ejected this argument on the basis that AU had not ascertained that Plaintiff in fact received
written notice, the argument still shows that there were substantially justifiable grounds for the
Government to oppose Plaintiffs appeal. In other words, there was a “reasonable basis in law and
fact” for the Government to argue that written notice, in addition to AU’s colloquy, was sufficient
to obtain Plaintiffs waiver. Pierce, 487 U.S. 556 n.2
Additionally, Defendant points out that even if an AU fails to obtain a knowing and
intelligent waiver of a claimant’s right to representation, the absence of a waiver alone is not
grounds for remand. (ECF No. 20 at 11). In order to remand an ALl’s decision for failure to elicit
a valid waiver, the Court must find that the proceeding in question resulted in prejudice or
unfairness due to Plaintiffs pro se status. Plzifer, 84 F. App’x at 190-91. The Court found that
prejudice was shown because, among other things, an attorney might have emphasized Plaintiffs
obesity or cross-examined the vocational expert’s testimony. (ECF No. 15 at 6). However, the
Court agrees that it was reasonable for the Government to oppose the appeal. As the Government
noted in its brief, AU solicited evidence from a vocational expert and worked with Plaintiff to
establish his medical record prior to making a determination on his disability. (ECF No. 11).
Although the Court ultimately sided with Plaintiff, the Government’s position did
offend established legal precedent.” McPhaul, 2011 US. Dist. LEXIS 17784 at *6.
Therefore, even though the Government’s position did not prevail, the Government was
‘justified to a degree that could satisfy a reasonable person” in its position that ALl’s colloquy in
conjunction with the written notices, was sufficient to elicit a knowing waiver of representation
from Plaintiff or alternatively, that the lack of representation did not result in prejudice or
unfairness at the administrative hearing. Pierce, 487 U.S. at 565. As such, the Court finds that
the goveniment has niet its burden to establish that its position was substantially justified and thus
not subject to fee shifling under EAJA.
For the reasons set forth above, Plaintiffs Motion for attorney’s fees is denied.
appropriate Order accompanies this opinion.
L. LINA ES
ef Judge, United States District Court
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