Fincannon Masters v. Commissioner of Social Security Administration

Filing 37

ORDER granting in part 32 Motion for Attorney Fees, awarding plaintiff the sum of $3476.55 in attorney's fees and $367.64 in costs. Signed by Honorable R Bryan Harwell on 12/05/2013.(bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Carla Y. Fincannon Masters,

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Plaintiff,
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v.
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Commissioner of Social Security,
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Defendant.
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____________________________________)

Civil Action No. 3:10-cv-2477-RBH

ORDER

On October 15, 2012, the plaintiff filed a motion for attorney’s fees1 pursuant to the Equal
Access to Justice Act (“EAJA”), 42 U.S.C. § 2412, on the basis that the position taken by the defendant
in this action was not substantially justified. Defendant filed a response on November 1, 2012. In the
response, the commissioner asserts that the motion should be denied because his position was
substantially justified. The commissioner also opposes the manner in which the plaintiff calculated the
requested fees and asserts that any fees should be made payable to the plaintiff and not her attorney.
The defendant does not object to the plaintiff’s request for costs. Plaintiff filed a Reply on November
5, 2012.
Under the EAJA, a court shall award attorney’s 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). The government bears
the burden of showing substantial justification. Thompson v. Sullivan, 980 F.2d 280 (4th Cir. 1992).
The district courts have discretion to determine a reasonable fee award and whether that award should
be made in excess of the statutory cap. Pierce v. Underwood, 487 U.S. 552 (1988); May v. Sullivan,

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Plaintiff filed a Memorandum in Support of the Motion on May 8, 2013.

936 F.2d 176, 177 (4th Cir. 1991).
The standard to be applied in determining whether the Commissioner was “substantially
justified” for purposes of determining whether award of attorney’s fees under the EAJA is warranted,
is whether there was arguably substantial evidence to support the Commissioner’s position, not whether
there was some evidence to support the position. Anderson v. Heckler, 756 F.2d 1011 (4th Cir. 1984).
The government’s position must be substantially justified in both fact and law. . . In other
words, favorable facts will not rescue the government from a substantially unjustified position
on the law; likewise, an accurate recital of law cannot excuse a substantially unjustified position
on the facts. After prevailing in the underlying suit, a petitioner may rely on either a
prelitigation position or a position taken during litigation as a predicate for fees. However,
where the government’s unjustified prelitigation position forces the petitioner to institute the
suit, the government is liable for fees for the whole suit, notwithstanding that it asserts
justifiable positions in the various subsidiary disputes that may arise during litigation.
Thompson v. Sullivan, 980 F.2d at 281-282.
The defendant contends that its position was substantially justified because it was reasonable
in law and fact. He contends that the failure to consider the medical records and opinions of Dr.
Joudeh, a physician who treated the plaintiff only twice, was reasonable in law and fact. This court
believes on the record before it that the defendant’s actions were not substantially justified and that an
award of attorney’s fees is appropriate. This Court adopted the Report of the Magistrate Judge,
reversed the Commissioner’s decision, and remanded the case for consideration of Dr. Joudeh’s opinion
[citing 20 C.F.R. § 404.1527(c)] and for re-evaluation of Dr. Oliver’s opinions, to which the ALJ had
assigned little weight based on conflicting evidence.
On the basis of the above, the Court finds the position of the government was not substantially
justified and that the plaintiff should be awarded attorney’s fees pursuant to EAJA.
However, the case presents two issues relating to the appropriate cost of living increase to the
$125 per hour rate allowed by the EAJA. (The Commissioner does not object to an award of $367.64
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in costs.)
The defendant contends that, in computing her requested attorney’s fees, Plaintiff should have
applied the South urban CPI-U for July 2011, which was the temporal midpoint between August 2010
and July 2012, when the services were rendered.
Attorney’s fees in excess of $125 per hour should not be awarded unless the court finds that an
increase in the cost of living or a “special factor”justifies a higher fee. 28 U.S.C. § 2412(d)(2)(A)(ii).
The Commissioner contends that plaintiff’s counsel’s hourly rate should be calculated using the
South urban regional CPI rather than the national all urban consumer index. The claimant requested
an hourly rate of $250 but did not explain how she calculated this rate other than to say that this is
counsel’s “regular non-contingent hourly rate.” (ECF No. 32, p. 3)
The Commissioner relies on a non-binding case from the United States Court of Claims, Cox
Constr. Co. v. United States, 17 Cl.Ct. 29 (1989). This court notes that in Sullivan v. Sullivan, 958 F.2d
574 (4th Cir. 1992), the Fourth Circuit held that a broad cost of living index is the appropriate measure
by which to calculate a cost of living enhancement to the statutory fee. Therefore, the Court finds that
the hourly rate of $250 requested by the claimant is excessive and holds that the national CPI should
be utilized.
As to the Commissioner’s position that the court should utilize the average for July of 2011, this
argument lacks merit. The United States District Court for the District of South Carolina addressed a
similar argument in Ball v. Sullivan, 754 F.Supp. 71, 75 (D.S.C. 1990). In Ball, the court made
reference to “the figure most closely corresponding to the close of services rendered in this case,”
which was June 1990, when referring to the application and calculation of the CPI figure. Id. at 74.
This court holds that July, 2012 (the month this court’s order was issued) is an appropriate endpoint

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for computing the cost of living adjustment of the EAJA statutory cap in the case at bar.2 See also,
Sellars v. Barnhart, 2008 WL 2178544, slip op. *2 (D.S.C. May 22, 2008); Nesmith v. Astrue, 2008
WL 2169897, slip Op. *2 (D.S.C. May 21, 2008)(rejecting the argument by the Commissioner that the
temporal midpoint of the period during which the attorney’s services were rendered was the appropriate
month on which to calculate the cost of living adjustment).
Applying the CPI-U U.S. City Average for July 2012 (229.104) and dividing it by the CPI-U
U.S. City Average for March 1996-the date the EAJA was reenacted-(155.7), and multiplying the
resulting quotient (1.47) by $125 (the base hourly rate under the EAJA), the result is an hourly rate of
$183.75. Therefore, the attorney fee award is $3476.55 (18.92 hours of work x $183.75 per hour).
Regarding the appropriate payee of the check, the United States Supreme Court has determined
that the party and not the attorney is the prevailing party under the EAJA statute. In the case at bar, the
government indicates that the Commissioner “determines whether to waive the requirements of the
Anti-Assignment Act only after a court actually awards fees, and will waive the requirements only if
the Commissioner determines that the plaintiff does not owe a debt that is subject to offset under the
Treasury Offset Program, 31 U.S.C. Section 3716(c)(3)(B)(2006).” (ECF No. 34, p. 10, n. 4).
Therefore, the government takes the position that the decision whether to waive the Act and accept an
assignment is in the sole discretion of the government. The plaintiff has not made any argument against
this.
The Court accordingly orders that the EAJA attorney’s fee payment should be made payable

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“[T]he cost of living adjustment provision seems designed to provide a disincentive to
agencies to prolong the litigation process. The agency should not reap the benefits of any inflation
during litigation. Similarly, attorneys should not have the purchasing power of their fees eroded by
such inflation.” Garcia v. Schweiker, 829 F.2d 396, 402 (3rd Cir. 1987) (internal citations omitted).
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to the plaintiff as the prevailing party rather than the attorney. However, the check should be mailed
to the attorney, with notice of this mailing being sent to the plaintiff.3
Based on the foregoing and after consideration of the briefs and affidavits submitted, the court
so Orders the defendant to pay plaintiff the sum of $3476.55 in attorney’s fees (18.92 hours of work
x $183.75 per hour) and $367.64 in costs. The check should be made payable to the plaintiff but mailed
to the attorney, with notice of this mailing being sent to the plaintiff.4
IT IS SO ORDERED.

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
December 5, 2013
Florence, South Carolina

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In some cases, the Commissioner has consented to determine whether a claimant owes an
offset-qualifying debt and, if the claimant owes no debt, then the assignment to counsel was honored.
See, e.g., McDonald v. Astrue, 2010 WL 4818092 (W.D.N.C. 2010); Summey v. Astrue, 2011 WL
198101 (W.D.N.C. 2011). Here, the Commissioner has not consented to such an arrangement.
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See Astrue v. Ratliff, 130 S.Ct. 2521, 2528-29 (2010).
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