Pace v. Commissioner of the Social Security Administration

Filing 43

ORDER granting 39 Motion for Attorney Fees in the amount of $6,300 representing Plaintiff's initial fee request of $6,120.00 plus Plaintiff's additional attorney's fee request of $180.00 for preparation of a reply. Signed by Honorable Mary G Lewis on 1/28/2014.(cwil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Martha Pace,

)
)
Plaintiff, )
)
v.
)
)
Carolyn W. Colvin,
)
Commissioner of Social Security,
)
)
Defendant. )
__________________________________

Civil Action No.: 1:10-3256-MGL

ORDER

This matter is before the Court on Plaintiff’s motion for an award of attorney's fees
under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. §2412(d). Plaintiff seeks an
award of $6,120.00 in attorney’s fees representing 16.25 hours of attorney time at the rate
of $180 per hour and 35.50 hours of paralegal time at the rate of $90 per hour. (ECF Nos.
39-3 & 39-4). Defendant, the Commissioner of Social Security (“Commissioner”), objects
to an award under the EAJA, arguing that the Commissioner’s position was substantially
justified. (ECF No. 41). Plaintiff filed a reply to the Commissioner’s Response1. (ECF No.
42). For reasons set forth below, the Court finds that the Commissioner's position was not
substantially justified and awards Plaintiff attorney’s fees.
Under the provisions of the EAJA, a court shall award reasonable attorney’s fees
to a prevailing party in certain civil actions against the United States unless it finds that the

1

In Plaintiff’s reply, she requests an additional $180.00 representing a half hour of attorney time at
a rate of $180.00 per hour and one hour of paralegal time at a rate of $90.00 that she contends was necessary
to address the Commissioner’s objections.

government's position was substantially justified or that special circumstances make an
award unjust. 28 U.S.C. § 2412(d)(1)(A) (2010).2 The government has the burden of
proving that its position was substantially justified. Crawford v. Sullivan, 935 F.2d 655, 658
(4th Cir.1991). “The government's position must be substantially justified in both fact and
law.” Thompson v. Sullivan, 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 that could satisfy a reasonable person.” Pierce v. Underwood, 487
U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (internal quotations omitted).
This matter initially came before the Court on an appeal of the decision of the
Commissioner denying Plaintiff disability benefits. In the course of the administrative
process, Plaintiff submitted to the Appeals Council new and material medical records from
her treating physician, Dr. James W. Hudson. These records specifically addressed the
concerns expressed by the Administrative Law Judge (“ALJ”) that lead to the denial of
Plaintiff’s claim. The Appeals Council denied Plaintiff’s request for review without weighing
the newly submitted evidence or reconciling it with other conflicting evidence in the record.
This Court found the Commissioner's failure to weigh and reconcile the new and material
evidence submitted to the Appeals Council to be contrary to the clear holding of the Fourth
Circuit in Meyer v. Astrue, 662 F.3d 700, 707 (4th Cir.2011) and remanded the matter for
further administrative proceedings.

2

A party, like Plaintiff, who wins remand pursuant to sentence four of the Social Security Act, 42
U.S.C. § 405(g), is a prevailing party for EAJA purposes. See Shalala v. Schaefer, 509 U.S. 292, 300–302,
113 S.Ct. 2625, 125 L.Ed.2d 239 (1993).

2

The Court notes that the Commissioner now contends that her failure to weigh the
newly submitted evidence was substantially justified because she “reasonably did not view
the evidence as ‘competing’ or conflicting with the evidence before the ALJ.” (EFC No. 41
at 5). However, where material evidence is newly produced at the Appeals Council stage
of the administrative process and conflicts with evidence credited and relied upon by the
Administrative Law Judge, there is a problem for the reviewing court because “no fact
finder has made any findings as to the treating physician's opinion or attempted to reconcile
that evidence with the conflicting and supporting evidence in the record.” Id. “Assessing
the probative value of the competing evidence is quintessentially the role of the fact finder.”
Id. In Meyer, the the Fourth Circuit held that remand for further fact finding is mandatory
under these circumstances. Id. As such pursuant to Meyer, the Commissioner has failed
to carry her burden of demonstrating that her position was substantially justified. Plaintiff’s
motion for attorney fees under the EAJA is granted.
The Commissioner has not challenged Plaintiff's requested hourly rate or hours
expended. After consideration of the memoranda and affidavits submitted, the Court finds
the total fee request, hours expended and hourly rate to be reasonable and authorized
under applicable law. Gisbrecht v. Barnhart, 555 U.S. 789, 122 S.Ct. 1817, 152 L.Ed.2d
996 (2002). Therefore, the Court grants Plaintiff an attorney’s fee award under the EAJA
of $6,300 representing Plaintiff’s initial fee request of $6,120.00 plus Plaintiff’s additional
attorney’s fee request of $180.00 for preparation of a reply.3 The Court directs that the

3

The district court has broad discretion to set the attorney-fee amount. “[A] district court will always
retain substantial justification in fixing the amount of an EAJA award.” Commi’r v. Jean, 496 U.S. 154, 163,
110 S.Ct. 2316, 110 L.Ed. 2d 134. (1990).

3

Commissioner make the check payable to Plaintiff and to deliver the check to the office of
Plaintiff’s counsel.
IT IS SO ORDERED.
/s/Mary G. Lewis
United States District Judge
Spartanburg, South Carolina
January 28, 2014

4