Roberts v. Commissioner of Social Security

Filing 29

ORDER granting 26 Motion for Attorney Fees; the plaintiff is awarded attorney's fees of $6,348.13 representing 33.75 attorney hours at the rate of $175 per hour and 5.05 paralegal hours at the rate of $87.50 per hour. Signed by Honorable Joseph F Anderson, Jr on September 27, 2010.(cwil, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA

R a n d e l Roberts,

) ) Plaintiff, ) v. ) ) Michael J. Astrue, ) C o m m is s io n e r of Social Security, ) ) D e f e n d a n t. ) ______________________________________ )

C /A No. 0:09-1607-JFA-PJG

ORDER

O n June 17, 2010, this court reversed the Commissioner's final decision and re m a n d e d this case to the Commissioner for further administrative proceedings. Counsel for th e plaintiff, Paul T. McChesney, has now moved for attorney's fees and costs under the E q u a l Access to Justice Act (EAJA) , 28 U.S.C. § 2412(d). He suggests that the plaintiff is th e prevailing party in this action for social security benefits and that the position of the C o m m is s io n e r was not substantially justified. The Magistrate Judge to whom this matter was referred filed a Report and R e c o m m e n d a tio n suggesting that the case be remanded to the Commissioner for further p ro c e ed in g s because the additional evidence submitted to the Appeals Council did not p ro v id e a detailed explanation so as to allow this court to properly determine if the A d m in is tra tiv e Law Judge's decision was based on substantial evidence and was a correct a p p lic a tio n of the law. Significantly, the Commissioner did not object to the Report, which w a s adopted as the order of this court. T h e Commissioner now argues that even though he was unsuccessful on the merits, 1

h is position was nevertheless substantially justified. He correctly points out that the su b sta n tial justification test is one of reasonableness in law and fact and that his argument, th o u g h ultimately unpersuasive to this court, was reasonable in this case. He also points out th a t the test for substantial evidence under the Social Security Act is not the same as the test f o r substantial justification under the EAJA. U n d e r the EAJA, a court shall award reasonable attorney's fees to a prevailing party1 in certain civil actions against the United States unless it finds that the government's position w a s substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2 4 1 2 (d )(1 )(A ) (2010). The government has the burden of proving that its position was s u b s ta n tia lly justified. Crawford v. Sullivan, 935 F.2d 655, 658 (4th Cir.1991). "The g o v e rn m e n t's position must be substantially justified in both fact and law." Thompson v. S u lliv a n , 980 F.2d 280, 281 (4th Cir.1992). Substantially justified does not mean "justified to a high degree, but rather justified in substance or in the main-that is, justified to a degree th a t could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565 (1988) (in te rn a l quotations omitted). While "the substantially justified standard is not `a high s ta n d a rd ' requiring `a strong showing,' the standard requires that the government must do m o re than merely avoid frivolity for it to escape liability for fees under the Act." Evans v. S u lliv a n , 928 F.2d 109, 111 (4th Cir.1991) (citing Pierce, 487 U.S. at 565-66). When determining whether Commissioner's position was substantially justified, the

A party who wins remand pursuant to sentence four of the Social Security Act, 42 U . S . C . § 405(g), is a p r e v a ilin g party for EAJA purposes. See Shalala v. Schaefer, 509 U.S. 292, 300-302 (1993).

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c o u rt should avoid an issue-by-issue analysis and should consider the totality of the c irc u m s ta n c e s . Roanoke River Basin Ass'n v. Hudson, 991 F.2d 132, 138-39 (4th Cir.1993). The district court has broad discretion to set the attorney-fee amount. "[A] district c o u rt will always retain substantial discretion in fixing the amount of an EAJA award. E x o rb ita n t, unfounded, or procedurally defective fee applications ... are matters that the d istric t court can recognize and discount." Hyatt v. North Carolina Dep't of Human Res., 3 1 5 F.3d 239, 254 (4th Cir.2002) (citing Comm'r v. Jean, 496 U.S. 154, 163 (1990). M o re o v e r, the could should not only consider the "position taken by the United States in the civil action, but also the "action or failure to act by the agency upon which the civil ac tio n is based." 28 U.S.C. § 2412(d)(2)(D), as amended by P.L. 99-80, § 2(c)(2)(B). A p p lyin g this standard to the facts of this case, the court has concluded that the p o sitio n of the Commissioner was not substantially justified. Indeed, the Commissioner did n o t object to the Report and Recommendation which was filed by the Magistrate Judge and w as incorporated as an order of this court. Therefore, after a thorough review of the record in this case, the court determines that a proper showing has been made under EAJA and that th e fee sought should be approved by this court. T h e only remaining issue in this case is the appropriate hourly rate to award plaintiff's c o u n s e l. McChesney seeks an hourly rate in excess of $125 per hour to adjust for an increase in the cost of living. The motion indicates that the following attorneys spent the amounts in d ic a te d in representing the plaintiff in this case: Paul Townsend McChesney -- 2.90 hours;

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W . Daniel Mayes -- 30.85 hours (for brief writing services to McChesney).2 Additionally, i t appears that McChesney's paralegal spent approximately 5.05 hours assisting him. C o u n s e l's explanation of how he arrived at this hourly rate is set out in his motion for a tto r n e y' s fees as follows: T h e June 2010 all urban consumer price index published by the Bureau of L a b o r Statistics was 217.97, and it was 155.7 for March 1996. The more recent f ig u re was 62.27 (217.97-155.7) points higher than March 1996, for an in c re a se of 40.0% (62.27 ÷155.7x 100). The maximum rate for attorney's fees u n d e r the EAJA without enhancement was $125 in March 1996. Increased by 4 0 % , the inflation adjusted fee cap is $175 without enhancement for special f a cto rs ($125x40%) +$125). The amount of the fee request does not exceed the E q u a l Access to Justice Act cap of $125 per hour adjusted for inflation. The Commissioner has made no response to the plaintiff's calculation and the court f in d s it reasonable. B a se d on the foregoing and after consideration of the briefs and affidavit submitted, th e court overrules the Commissioner's response to the plaintiff's motion for attorney's fees. It is therefore ordered that the plaintiff is awarded attorney's fees of $6,348.13 representing 3 3 .7 5 attorney hours at the rate of $175 per hour and 5.05 paralegal hours at the rate of $ 8 7 .5 0 per hour.3 In the event past due benefits are awarded on remand, the plaintiff shall have 60 days a f te r being served with a Notice of the Past Due Benefits to file for fees under 42 U.S.C. §

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Mr. Mayes is admitted to the bar of the District Court for South Carolina.

The fees must be paid to plaintiff. See Astrue v. Ratliff, 505 U.S. ___, No. 08-1322, slip op. at 1 (June 14, 2 0 1 0 ) (holding that the plain text of the EAJA requires that attorney's fees be awarded to the litigant, thus subjecting E A J A fees to offset of any pre-existing federal debts); see also Stephens v. Astrue, 565 F.3d 131, 139 (4th Cir.2009) ( sa m e ) .

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4 0 6 (b ). If plaintiff demonstrates entitlement to a fee under this provision, counsel will be r e q u ir e d to refund to the plaintiff the amount of the smaller of the two fees. IT IS SO ORDERED.

September 27, 2010 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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