Keefer v. Commissioner of the Social Security Administration

Filing 34

AMENDED ORDER granting 27 First MOTION for Attorney Fees Under EAJA, directing the Commissioner to pay Plaintiff $6,883.12. Signed by Magistrate Judge Shiva V Hodges on 08/21/2013. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Gregory Wayne Keefer,
Plaintiff,
vs.
Carolyn W. Colvin, Acting
Commissioner of Social Security
Administration,
Defendant.

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C/A No.: 1:11-2684-SVH

AMENDED ORDER

This matter is before the court on Plaintiff’s motion for attorney’s fees pursuant to

the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). Plaintiff requests
$6,883.12 in attorney’s fees on the ground that he is a prevailing party under the EAJA.
[Entry #27]. Defendant contests the awarding of such fees, asserting the government’s
position was substantially justified. [Entry #28 at 1]. For the reasons set forth below, the
court grants Plaintiff’s motion.
I.

Procedural Background
On March 22, 2010, Plaintiff filed an application for Disability Insurance Benefits

(“DIB”) in which he alleged his disability began on August 10, 2009. Tr. at 117–18. His
application was denied initially and upon reconsideration. Tr. at 53, 56. Following a
hearing before an Administrative Law Judge (“ALJ”), the ALJ issued an unfavorable
decision. Tr. at 11–20. In his decision, the ALJ found Plaintiff had not been under a
disability since the date the application was filed. Id. Applying the five-step sequential
process, the ALJ found that Plaintiff had severe impairments of cervical and lumbar

degenerative disc disease, fibromyalgia, and dizziness. Id. The ALJ determined that
Plaintiff did not have an impairment or combination of impairments that met or medically
equaled one of the impairments listed at 20 C.F.R. part 404, subpart P, appendix 1. Id.
Further, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to
perform light work as defined in 20 CFR 404.1567(b), but must avoid exposure to work
hazards, dangerous machinery, and driving of automotive equipment. Id. Finally, the
ALJ determined that Plaintiff was unable to perform any past relevant work, but that jobs
existed in significant numbers in the national economy that he could perform. Id.
The Appeals Council denied Plaintiff’s request for review, making the ALJ’s
decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1–
3. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner’s
decision in a complaint filed on October 4, 2011. [Entry #1]. Plaintiff alleged several
errors committed by the ALJ, including that the ALJ’s RFC assessment was improper and
that the ALJ erred in determining Plaintiff’s depression and anxiety were not severe
impairments. [Entry #21]. The undersigned reversed and remanded the case, finding that
the ALJ erred in assessing Plaintiff’s RFC by failing to address whether Plaintiff’s mental
impairments resulted in any functional limitations in violation of 20 C.F.R. § 404.1545
and failing to sufficiently identify which of Plaintiff’s physical impairments existed as of
his date last insured. [Entry #25 at 20–22].
II.

Discussion
Under the EAJA, a court shall award reasonable attorney’s fees to a prevailing

party in certain civil actions against the United States unless the court finds that the

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government’s position was substantially justified or that special circumstances make an
award unjust. 28 U.S.C. § 2412(d)(1)(A). Because this court remanded to the ALJ
pursuant to 42 U.S.C. § 405(g), Plaintiff is considered the “prevailing party” under the
EAJA. See Shalala v. Schaefer, 509 U.S. 292, 302 (1993). Therefore, as the nonprevailing party, 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 (1988) (internal quotation marks omitted). There is no presumption that
the government’s position was not substantially justified simply because it lost the case.
Crawford, 935 F.2d at 656.
“The government’s non-acquiescence in the law of the circuit entitles the claimant
to recover attorney’s fees.” Id. at 658; see also Adams v. Barnhart, 445 F. Supp. 2d 593,
595 (D.S.C. 2006) (“Where the government’s position was a result of its failure to
perform a certain analysis required by the law and its regulations, the government’s
position was not substantially justified.”).
The Commissioner’s position throughout this litigation has been that the ALJ
correctly assessed Plaintiff’s RFC. [Entry #28 at 3]. The court, however, remanded the
case after concluding that the ALJ’s RFC assessment was flawed. [Entry #25]. The
Commissioner now contends that even though her argument regarding the RFC

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assessment was not ultimately persuasive to the court, it was “arguably defensible” and,
as such, was substantially justified. [Entry #28 at 3]. In remanding the case, the court
specifically found that the ALJ failed to comply with 20 C.F.R. § 404.1545, which
requires the ALJ to consider all medically-determinable impairments, including
impairments that are not “severe,” when conducting an RFC assessment. Although nonsevere, Plaintiff’s depression and anxiety were medically-determinable impairments that
the ALJ was required to consider in determining Plaintiff’s RFC. Because the ALJ failed
to comply with the applicable regulations, the court finds that the Commissioner’s
position was not substantially justified. See Adams, 445 F. Supp. 2d at 595.
III.

Conclusion
For the foregoing reasons, the court finds that the government has not met its

burden of showing that its position was substantially justified. The court does not find
any special circumstances that make an award of attorney’s fees unjust. Accordingly, the
court grants Plaintiff’s motion and directs the Commissioner to pay Plaintiff $6,883.121
forthwith. Such payment shall constitute a complete release from and bar to any and all
further claims that Plaintiff may have under the EAJA to fees, costs, and expenses
incurred in connection with disputing the Commissioner’s decision.

This award is

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Defendant has not objected to Plaintiff’s original calculation of the fee. In his reply
brief, Plaintiff seeks an additional $460.80 for time spent responding to the
Commissioner’s opposition to the motion for attorney’s fees. [Entry #29 at 2]. The court
remanded this case pursuant to sentence four of 42 U.S.C. § 405(g). Once a district court
enters a sentence four remand, the civil action is over. See Shalala v. Schaefer, 509 U.S.
292, 299 (1993). With no pending civil action, the EAJA has no foundation on which to
operate. See 28 U.S.C. § 2412(d)(1)(A) (requiring an award of fees to the prevailing
party for fees and expenses “incurred by that party in any civil action”). Because the
requested additional fees were incurred after the civil action was complete, the
undersigned declines to award them in this matter.
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without prejudice to the rights of Plaintiff=s counsel to seek attorney fees under section
406(b) of the Social Security Act, 42 U.S.C. § 406(b), subject to the offset provisions of
the EAJA.
IT IS SO ORDERED.

August 21, 2013
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge 

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