Bond v. Commissioner of Social Security Administration

Filing 37

ORDER granting 35 Motion for Attorney Fees under EAJA, awarding $5,596.81 in fees and $23.00 for costs and expenses. Signed by Honorable Richard M. Gergel on 05/16/2014.(bshr, )

IN THE UNITED STATES DISTRICT CQIJ;R'I:'
DISTRICT OF SOUTH CAROLINA"'" •
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Chantee Bond,
Plaintiff,
vs.
Carolyn W. Colvin, Acting Commissioner
of Social Security,
Defendant.

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HAY I b A 1/: OS

Civil Action No. 0: 12-2764-RMG

ORDER

This matter comes before the Court on Plaintiffs motion for an award of attorney's fees
under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. (Dkt. No. 35). Plaintiff
seeks an award of$5,596.81, based upon 30.05 hours of attorney's time compensated at $186.25
per hour and $23.00 in costs. Id. at 6-7. Plaintiff asserts she is entitled to an award under EAJA
because the Defendant's position in the Social Security disability appeal was not substantially
justified and the amount of fees requested is reasonable. Defendant opposes an award under
EAJA, arguing that the Government's position was substantially justified. (Dkt. No. 36).
Under the provisions ofEAJA, parties prevailing against the United States are entitled to
an award of attorney's fees unless the Government can carry its burden of demonstrating that its
litigation position was substantially justified. 28 U.S.C. § 2412(d)(1 )(A); Crawford v. Sullivan,
935 F.2d 655, 658 (4th Cir. 1991). "Substantial justification" is more than "merely undeserving
of sanctions for frivolousness" and the Government's position must be "reasonable ... both in
law and in fact." Pierce v. Underwood, 487 U.S. 552, 565-66 (1988). EAJA defines the

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"position of the United States" to include both the "position taken by the United States in the
civil action" as well as the "the action or failure to act by the agency". 28 U.S.C.
§ 2412(d)(2)(d).
This Court earlier reversed the Commissioner's decision and remanded the matter to the
agency because of the failure of any fact fmder to evaluate the opinions of two treating specialist
physicians whose opinions addressed issues highly probative to the Plaintiff's claim of disability
arising from mental disorders. (Dkt. No. 33 at 4-6). One ofthose opinions was provided by a
treating board certified psychiatrist, Dr. Mary Hill, whose report appeared to the Court to simply
have been overlooked by the Administrative Law ludge ("ALl"). Dr. Hill's findings, diagnoses
and opinions tended to corroborate the opinions of other treating providers of the Plaintiff
discredited by the ALl and lent support for Plaintiffs claim. The failure of the ALl to evaluate
and weigh Dr. Hill's opinions constituted a clear, unarguable violation of the duty of the
Commissioner to consider the opinions of all medical experts, including particularly treating
specialist physicians. 20 C.F.R. § 404.l527(c). The Court found the Commissioner's appellate
position that this clear error did not require reversal unimpressive and unjustified. Further, the
failure of any fact finder to consider and weigh the highly probative opinions of another treating
specialist psychiatrist, Dr. Richard Ford, submitted for the first time to the Appeals Council, to
have been violative of settled Fourth Circuit authority. See, Meyer v. Astrue, 662 F.3d 700, 706­
07 (4th Cir. 2011); Bird v. Commissioner ofSocial Security, 699 F.3d 337, 340-41 (4th Cir.
2012).
The Commissioner argues that her position was substantially justified because the
Magistrate Judge and Plaintiff's counsel overlooked these issues and they were first raised by the
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Court itself. (Dkt. No. 36 at 3-4). While the Court has consider this point, the issue of substantial
justification under EAJA is focused primarily on the conduct of the government, both at the
agency level and on appeal before the Court. 28 U.S.C. § 2412(d)(l)(A), (d)(2)(D). Measured
by that standard, the Government has failed to carry its burden of demonstrating that its position
was substantially justified at either the agency or court level, making an award under EAJA
appropriate.
The Defendant has not challenged the Plaintiff's asserted hours or rate of compensation.
The Court has, however, made an independent review of the Plaintiffs attorney time and rates
and finds them reasonable and in accord with applicable law. Gisbrecht v. Barnhart, 535 U.S.
789 (2002). The Court GRANTS Plaintiff's motion for attorney fees under EAJA in the amount
of $5,596.81 and costs of $23.00. This award is subject to the Treasury Offset Program, 31
U. S.C. § 3716(c)(3 )(8). Ifthere is no offsetting debt due and the Plaintiff waives the
requirements ofthe Anti-Assignment Act, the EAJA fees shall be paid directly to Plaintiff's
counsel. Otherwise, payment of any amount due under this award, after satisfaction of any debt
due under the Treasury Offset Program, shall be paid by check made payable to Plaintiff and
delivered to Plaintiffs counsel.
AND IT IS SO ORDERED.

Richard Mark Gergel
United States District Judge

Charleston, South Carolina
May ~ 2014

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