Bird v. Commissioner of Social Security Administration
Filing
41
ORDER granting 36 Motion for Attorney Fees pursuant to the EAJA, awarding Plaintiff $31,174.74, consisting of $29,064.52 in attorneys' fees, $805.00 in costs, and $1,305.22 in appellate expenses. Signed by Honorable Cameron McGowan Currie on 05/22/2013.(bshr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Earl Matthew Bird
)
)
Plaintiff,
)
)
v.
)
)
Carolyn W. Colvin,
)
Acting Commissioner of Social Security
)
Administration,1
)
)
Defendant.
)
__________________________________________)
C/A No. 3:09-2689-CMC-JRM
ORDER
This matter is before the court on Plaintiff’s petition for attorneys’ fees pursuant to the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Plaintiff seeks an award of $30,250.59,
representing 152.25 attorney hours at a rate of $184.83 per hour, $805.00 for District Court and
Fourth Circuit filing fees, and $1,305.22 for appellate expenses. Dkt. No. 36 at 4. Defendant
(“Commissioner”) opposes the petition, arguing that Plaintiff is not entitled to an award of fees
because the Commissioner’s position in this case was substantially justified. Should the court find
that the Commissioner’s position was not substantially justified, the Commissioner argues that the
requested hourly rate and some of the time are excessive. For reasons set forth below, the court finds
that the Commissioner’s position was not substantially justified and awards Plaintiff attorneys’ fees.
1
Carolyn W. Colvin is substituted as the Defendant in this action because she became the
Acting Commissioner of Social Security on February 14, 2013. As provided in the Social Security
Act, “[a]ny action instituted in accordance with this subsection shall survive notwithstanding any
change in the person occupying the office of Commissioner of Social Security or any vacancy in such
office.” 42 U.S.C. § 405(g). For ease, the court refers to the Acting Commissioner as the
Commissioner.
1
STANDARD
Under the EAJA, a court shall award reasonable attorneys’ fees to a prevailing party in
certain civil actions against the United States unless it finds that the 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 (1988) (internal quotations omitted). When determining whether
Defendant’s position was substantially justified, the court should avoid an issue-by-issue analysis
and should consider the totality of the circumstances. 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 court will always retain substantial discretion in fixing the amount of an EAJA
award. Exorbitant, unfounded, or procedurally defective fee applications . . . are matters that the
district court can recognize and discount.” Comm’r v. Jean, 496 U.S. 154, 163 (1990).
FACTS
Plaintiff applied for Disability Insurance Benefits (“DIB”) on December 19, 2006, alleging
disability as of January 1, 2001. The ALJ, in a decision issued May 8, 2009, found Plaintiff not
disabled and denied his claim, finding that Plaintiff did not have a severe impairment prior to the
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 (1993).
2
Plaintiff’s last insured date (March 31, 2005). The Appeals Council denied Plaintiff’s request for
review.
Plaintiff filed this action on October 15, 2009. Dkt. No. 1. On February 14, 2011, Magistrate
Judge Joseph R. McCrorey issued a Report and Recommendation (“Report”), recommending that
the Commissioner’s decision be affirmed. Dkt. No. 15. On March 4, 2011, the court adopted the
Report. Dkt. No. 19. Plaintiff filed a motion to alter the judgment on March 25, 2011, which the
court denied on April 27, 2011.
On June 20, 2011, Plaintiff filed a notice of appeal. On November 9, 2012, the Fourth
Circuit issued an opinion vacating this court’s decision and remanding the case to the ALJ for further
proceedings. The Fourth Circuit held that the Commissioner erred in failing to give retrospective
consideration to medical evidence created after Plaintiff’s last insured date, and in failing to give
substantial weight to Plaintiff’s disability determination made by the Department of Veterans Affairs
(VA).
On April 9, 2013, Plaintiff filed a petition for attorneys’ fees pursuant to the EAJA. Dkt. No.
36. On April 26, 2013, the Commissioner filed an opposition to Plaintiff’s EAJA petition (Dkt. No.
37), to which Plaintiff replied on May 3, 2013. Dkt. No. 38.
DISCUSSION
The Commissioner argues that her position was substantially justified because the Magistrate
Judge recommended affirming the Commissioner’s decision and the undersigned adopted the Report.
The fact that at least one court agreed with the Commissioner, however, does not establish that the
Commissioner’s position was substantially justified. See Pierce v. Underwood, 487 U.S. 552, 569
(1988) (“Obviously, the fact that one other court agreed or disagreed with the Government does not
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establish whether its position was substantially justified.”).
The Fourth Circuit held that the Commissioner committed legal error because she failed to
consider the evidence summarized in the VA rating decision and the Cole Report. 699 F.3d at 34041. Although these medical evaluations were made after Plaintiff’s insured status had expired, this
evidence should have been given retrospective consideration because it is relevant to whether
Plaintiff was disabled prior to his last insured date. Id. (citing Moore v. Finch, 418 F.2d 1224 (4th
Cir. 1969); Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005)). By not considering the evidence,
the Commissioner failed to apply existing Fourth Circuit law.3
Considering the totality of the circumstances, the court finds that the Commissioner was not
substantially justified in her position. Accordingly, Plaintiff is entitled to an award of attorneys’ fees
under the EAJA.
The Commissioner also opposes the hourly rate requested by Plaintiff, as well as certain time
entries. Plaintiff’s requested hourly rate includes a cost of living adjustment pursuant to the
Consumer Price Index (CPI) in November 2012. Counsel performed work on this case in 2010,
2011, and 2012, and litigation was substantially completed at the end of 2012.4 The Commissioner
contends that the hourly rate should be reduced to reflect the CPI for each year in which work was
performed. In other words, the Commissioner argues that the court should award a different hourly
rate for each year, based on the CPI for that year. Having reviewed the authority cited by the parties,
3
The Fourth Circuit also held that the Commissioner erred in not giving substantial weight
to the VA’s disability determination. This issue had not been addressed by the Fourth Circuit prior
to this decision. Accordingly, the court does not rely on this finding to conclude that the
Commissioner was not substantially justified in her position.
4
One quarter of an hour was billed for 2013. Dkt. No. 36-2 at 2.
4
the court finds the authority cited by Plaintiff persuasive. See Bolchoz v. Astrue, No. 1:11-137, 2012
WL 601899 (D.S.C. Feb. 23, 2012) (J. Gergel) (holding that“the proper CPI rate to utilize is that
number in effect at the conclusion of the litigation”); Nesmith v. Astrue, No. 4:06-0533, 2008 WL
2169897 (D.S.C. May 21, 2008) (J. Harwell) (finding the CPI in effect at the conclusion of litigation
appropriate for calculating hourly rate); Ball v. Sullivan, 754 F. Supp. 71, 75 (D.S.C. 1990) (J.
Hamilton) (finding that “application of a single rate to all hours claimed promotes the Congressional
intent behind the EAJA, which was ‘ensuring administrative accountability and concomitantly, of
lessening the financial burden on those who victoriously pursued that accountability through
litigation.’”). The court, therefore, finds that the hourly rate requested by Plaintiff ($184.83) is
appropriate as it utilizes the CPI for 2012, when the litigation concluded.
The Commissioner contends that Plaintiff should not be compensated for his attorney’s travel
time at the regular hourly rate. Counsel seeks compensation for fourteen hours driving to and from
Richmond, Virginia for oral argument at his regular hourly rate. The Commissioner does not oppose
Plaintiff’s request for compensation for travel time, but rather argues that he should be compensated
at half of the hourly rate. The court finds the requested time and hourly rate reasonable.
The Commissioner also contends that Plaintiff should not be compensated for counsel’s use
of an appellate service for case preparation ($464.00) and brief filing ($517.00), as these expense are
excessive. The Commissioner contends that counsel instead should be compensated for 1.5 hours
at the hourly rate for these activities. The court finds that these appellate expenses are reasonable
in light of the Fourth Circuit’s filing requirements.
In reply, Plaintiff requests an additional 7.35 hours for responding to the Commissioner’s
opposition to Plaintiff’s petition for EAJA fees. The court finds that 5.00 hours are reasonable and
adds this time to Plaintiff’s original request.
5
CONCLUSION
For reasons set forth above, the court grants Plaintiff’s motion for attorneys’ fees under the
EAJA. The court awards Plaintiff $31,174.74, consisting of $29,064.52 in attorneys’ fees (157.25
hours at $184.83 an hour), $805.00 in costs, and $1,305.22 in appellate expenses.
IT IS SO ORDERED.
S/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
May 22, 2013
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