Henderson v. Colvin

Filing 29

ORDER denying 23 Motion for Attorney Fees. Signed by District Judge Robert J. Conrad, Jr on 08/13/17. (emw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
BRYSON CITY DIVISION
2:14-cv-00003-RJC
JOHNATHAN HENDERSON,

)
)
Plaintiff,
)
)
v.
)
)
)
NANCY A. BERRYHILL,
)
Acting Commissioner of Social Security )
)
Defendant.
)
____________________________________ )

ORDER

THIS MATTER comes before the Court on Plaintiff’s Motion for Attorney Fees Pursuant
to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, (Doc. No. 23); memorandum in
support of his motion, (Doc. No. 24), Defendant’s response in opposition to Plaintiff’s motion,
(Doc. No. 25); and Plaintiff’s reply in support of his motion, (Doc. No. 26). The motion is fully
briefed and ripe for adjudication.
EAJA provides that the prevailing party in a civil action against the United States is entitled
to attorneys’ fees when the United States’ position was not substantially justified and there are no
special circumstances making an award unjust. 28 U.S.C. § 2412(d)(1)(A). Plaintiff is the
prevailing party in this litigation. When the Court remands under Sentence Four of 42 U.S.C. §
405(g), the plaintiff is the prevailing party. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
The Commissioner has the burden of showing that her position was substantially justified.
United States v. 515 Granby, LLC, 736 F.3d 309, 315 (4th Cir. 2013). Substantial justification
does not require the Commissioner’s position to be correct, but such a position may be substantially
justified if a reasonable person could think it correct. See Pierce v. Underwood, 487 U.S. 552, 566

n.2 (1988). A claim for attorneys’ fees may be defeated by the Commissioner by showing that her
position had a reasonable basis in both law and fact. Id. at 565–66.
To determine whether the Commissioner’s position in a case was substantially justified,
the Court must “look beyond the issue on which the petitioner prevailed to determine, from the
totality of the circumstances, whether the [Commissioner] acted reasonably in causing the
litigation or in taking a stance during the litigation.” Roanoke River Basin Ass'n v. Hudson, 991
F.2d 132, 139 (4th Cir. 1993). In making this determination, “it is appropriate to consider the
reasonable overall objectives of the [Commissioner] and the extent to which [her position]
departed from them. Id.
Here, this Court ruled in favor of the Commissioner, denying Plaintiff’s Motion for
Summary Judgment and granting Defendant’s Motion for Summary Judgment. (Doc. No. 13).
Yet, upon appeal, the Fourth Circuit affirmed in part and reversed in part this Court’s decision,
(Doc. No. 19), leading to this Court entering an order reversing the Commissioner’s decision and
remanding the matter to the Commissioner for further proceedings, (Doc. No. 21). Plaintiff
appealed on three grounds. On the first two, the Fourth Circuit affirmed this Court and the
Commissioner’s decision. But, on the third ground, relating to the resolution of conflicts between
the vocational expert’s testimony and the Dictionary of Occupational Titles (the “Dictionary”), the
Fourth Circuit reversed and remanded based on the Fourth Circuit’s recent ruling in Pearson v.
Colvin, 810 F.3d 204 (4th Cir. 2015), which was decided after this Court’s decision, the
Commissioner’s decision, and the filing of the Commissioner’s appellate brief. For this reason,
Defendant argues its position was substantially justified.

Plaintiff contends that the basis of the Fourth Circuit’s decision was Social Security Ruling
(“SSR”) 00-4p1 and the Administrative Law Judge’s error was a violation of that Ruling. Although
correct, that presentation fails to paint the whole picture. In Pearson, the Fourth Circuit interpreted
SSR 00-4p, holding that the “ALJ independently must identify conflicts between the expert’s
testimony and the Dictionary.” Id. at 209. Specifically at issue in Pearson was “whether SSR 004p requires the ALJ only to ask the vocational expert whether his testimony conflicts with the
Dictionary or also requires the ALJ to identify conflicts independently from the vocational expert.”
Id. at 208. While SSR 00-4p may have been the basis for the Fourth Circuit’s holding in Pearson,
such an interpretation had not been articulated by the Fourth Circuit until Pearson, and SSR 00-4p
did not alone make clear an ALJ’s independent obligation to identify and resolve conflicts with
the Dictionary as explained in Pearson.
Because the Commissioner did not have the benefit of Pearson at any stage in the litigation,
this Court finds that the Commissioner acted reasonably and her position was substantially
justified. For these reasons and for the additional reasons stated in Defendant’s memorandum in
opposition to the motion, Plaintiff’s Motion for Attorney Fees is DENIED.
IT IS, THEREFORE, ORDERED that Plaintiff’s Motion for Attorney Fees Pursuant to
the Equal Access to Justice Act, 28 U.S.C. § 2412, (Doc. No. 23), is DENIED.

Signed: August 13, 2017

In relevant part, SSR 00-4p states that an ALJ must “[i]dentify and obtain a reasonable
explanation for any conflicts between occupational evidence provided by VEs or VSs and
information in the Dictionary.”
1