McWhorter v. Commissioner of Social Security Administration

Filing 52

ORDER denying 49 Motion for Attorney Fees. Signed by Honorable Mary G Lewis on November 20, 2012.(cwil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

) Civil Action No.: 3:11-185-MGL
)
Plaintiff, )
)
v.
)
ORDER
)
Michael J. Astrue,
)
Commissioner of Social Security,
)
)
Defendant. )
__________________________________
Gerald Kevin McWhorter,

This matter is before the Court on Plaintiff’s motion for attorney's fees and costs for
the successful representation of the plaintiff by Hal W. Roach in the underlying Social
Security benefits action. The Court may make such an award pursuant to the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. §2412(d).
In his motion (ECF No. 49), the plaintiff requested an award of $4,768.05 in
attorney’s fees because he was the “prevailing party” and the “factual and legal positions
taken by the Social Security Administration were not ‘substantially justified.’” (ECF No. 491 at 6). The defendant filed a response in opposition (ECF No. 50) stating that plaintiff’s
request for fees should be denied because Defendant’s position in this case was
substantially justified and had a reasonable basis in fact and law. The Defendant points
out that the Magistrate Judge recommended that the Administrative Law Judge’s decision
be affirmed. (ECF Nos. 41 and 50.) This Court, however, adopted the Report and
Recommendation in part, and reversed and remanded the case for further administrative
action. (ECF No. 47.) Plaintiff filed a Reply to Defendant’s Response. (ECF No. 51.)
The Equal Access to Justice Act provides attorney's fees in actions where the
government's position is not substantially justified. The substantial justification test is one
of reasonableness in law and fact. See Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct.

2541, 101 L.Ed2d 490 (1988). Here, the government’s position was not unjustified. The
position espoused by the government was not without reason and was well-briefed and
argued. Ultimately, however, this Court decided to reverse in part and remand the matter
for further administrative action. Therefore, Plaintiff’s motion for attorney’s fees (ECF No.
49) is DENIED.
IT IS SO ORDERED.
s/Mary G. Lewis
United States District Judge
November 20, 2012
Spartanburg, South Carolina

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