Ward v. Carolyn W. Colvin

Filing 19

ORDER granting 15 Motion for Attorney Fees Pursuant to the EAJA in amount of $3,614.88 pursuant to instructions in the final paragraph of this Order. Signed by District Judge Robert J. Conrad, Jr on 11-23-2015. (cbb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:14-cv-1-RJC
FELECIA BRAY WARD,

)
)
Plaintiff,
)
)
vs.
)
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security )
)
Defendant.
)
____________________________________ )

ORDER

THIS MATTER comes before the Court on Plaintiff’s Application for Attorney’s Fees
Pursuant to the Equal Access to Justice Act (“EAJA”) and Supporting Memoranda, (Doc. Nos.
15, 16, 18), and the Commissioner’s Response in Opposition, (Doc. No. 17).
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

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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.
A proper function-by-function analysis is specifically required by Social Security
regulations. See SSR 96-8P. The ALJ failed to comply with Social Security regulations as well
as the Fourth Circuit’s interpretation of those regulations set forth in Mascio v. Colvin, 780 F.3d
632 (4th Cir. 2015). In its Order remanding this action, the Court directed the Administrative
Law Judge (“ALJ”) to conduct a new hearing and to provide a function-by-function analysis
consistent with the Mascio decision. (Doc. No. 13 at 1). Therefore, the Court implicitly found
that the ALJ failed to complete such an analysis in the first instance. When an ALJ fails to
follow the Commissioner’s own regulations, the Commissioner’s position in litigation defending
the ALJ’s failure cannot be substantially justified. See Dixon v. Astrue, No. 5:06-CV-77-JG,
2008 WL 360989, at *3 (E.D.N.C. Feb. 8, 2008).
The Court finds that the Commissioner’s position in this litigation was not substantially
justified and that there are no special circumstances that make an award of fees unjust. The
Court also finds the amount of fees Plaintiff seeks is reasonable. Therefore, the Court grants
Plaintiff’s Application for Attorney’s Fees.
IT IS, THEREFORE, ORDERED that Plaintiff’s Application for Attorney’s Fees

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Pursuant to the Equal Access to Justice Act, (Doc. No. 15), is GRANTED. The Court will
award attorneys’ fees in the amount of $3,614.88, and pursuant to Comm’r of Soc. Sec. v.
Ratliff, 560 U.S. 586 (2010), the fee award will first be subject to offset of any debt Plaintiff may
owe to the United States. The Commissioner will determine whether Plaintiff owes a debt to the
United States. If so, that debt will be satisfied first, and if any funds remain, they will be made
payable to Plaintiff and mailed to Plaintiff’s counsel. If the United States Department of the
Treasury reports to the Commissioner that the Plaintiff does not owe any debt, the Government
will exercise its discretion and honor an assignment of EAJA fees, and pay those fees directly to
Plaintiff’s counsel. No additional petition pursuant to 28 U.S.C. § 2412(d) shall be filed.
Signed: November 23, 2015

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