Pollander v. Commissioner of the Social Security Administration

Filing 34

ORDER denying 29 Motion for Attorney Fees; denying 31 Motion to Amend/Correct. Signed by Honorable Joseph F Anderson, Jr on 7/22/2011.(gnan )

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

Freida Pollander,

)
)
Plaintiff,
)
v.
)
)
Michael J. Astrue,
)
Commissioner of Social Security,
)
)
Defendant.
)
______________________________________ )

C/A No. 4:09-2508-JFA

ORDER

This matter is before the court upon motion of the plaintiff, through his attorney, Paul
T. McChesney, for an award of attorney’s fees under the Equal Access to Justice Act
(EAJA), 28 U.S.C. § 2412(d). He suggests that the plaintiff is the prevailing party in this
action for social security benefits and that the position of the Commissioner was not
substantially justified. Counsel seeks fees in the amount of $13,257.
The Magistrate Judge to whom this matter was referred filed a Report and
Recommendation suggesting that position of the Commissioner should be sustained.
Plaintiff timely filed objections to the Report and Recommendation, contending that the ALJ
erred in four different respects. Acting upon these objections, this court agreed with the
plaintiff on the first ground of error (relating to the testimony of the Vocational Expert) and
decided to remand the action to the ALJ for further consideration. Although the action was
remanded on this basis alone, the court nevertheless addressed the remaining three grounds
of error and agreed with the Commissioner as to the additional grounds.
The initial fee petition sought an attorney’s fee in the amount of $13,257, representing
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71.90 hours of time (at the rate of $180 per hour) and 3.5 hours of paralegal time (at the rate
of $90 per hour). Before the court could rule upon the motion, the plaintiff filed an
amendment to the EAJA petition, reducing the amount of attorney’s fees requested from
$13,257 to $6,500. After carefully considering the entire record in this case, this court
concludes that the Commissioner has met his burden of proving that its position taken in this
case was substantially justified. For this reason, the court will deny the attorney’s fee award
requested.
The test for substantial evidence under the Social Security Act is not the same as the
test for substantial justification under the EAJA. Under the EAJA, a court shall award
reasonable attorney’s fees to a prevailing party1 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). 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). While “the
substantially justified standard is not ‘a high standard’ requiring ‘a strong showing,’ “the
standard requires that the government must do more than merely avoid frivolity for it to
escape liability for fees under the Act.” Evans v. Sullivan, 928 F.2d 109, 111 (4th Cir.1991)
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A party 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).

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(citing Pierce, 487 U.S. at 565-66).
When determining whether Commissioner’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.” Hyatt v. North Carolina Dep’t of Human Res.,
315 F.3d 239, 254 (4th Cir.2002) (citing Comm’r v. Jean, 496 U.S. 154, 163 (1990)).
Moreover, the could should not only consider the “position taken by the United States
in the civil action, but also the “action or failure to act by the agency upon which the civil
action is based.” 28 U.S.C. § 2412(d)(2)(D), as amended by P.L. 99-80, § 2(c)(2)(B).
Applying this standard to the facts of this case, the court has concluded that the
position of the Commissioner was substantially justified.
The court commends plaintiff’s counsel for voluntarily reducing the amount of the
request by more than 50 percent. Nevertheless, the court has carefully reviewed the record
in this case and has determined that the Commissioner’s position was substantially justified.
Initially, it should be noted that this case presents a situation where this court disagreed with
the Report and Recommendation of the Magistrate Judge. It did so, however, relying upon
one ground of error alone. As to the remaining three, as noted above, the court agreed with
the Magistrate Judge that the position taken by the Commissioner was correct.
Focusing upon the one issue that prompted the reversal and remand, the plaintiff
argued, and this court agreed, that the ALJ committed reversible error when the ALJ failed
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to ask the Vocational Expert (VE) whether his testimony was consistent with the Dictionary
of Occupational Titles (DOT), and failed to obtain a reasonable explanation for the conflict
and explain how it was resolved. The Magistrate Judge reviewed the hearing transcript and
concluded that while the ALJ may not have expressly asked the VE if there was a conflict,
the VE explained the conflict when responding to the ALJ’s hypothetical. The Magistrate
Judge thus suggested that any error that might have occurred was harmless in the final
analysis. On this record, the court agreed with the plaintiff that case law from South Carolina
federal courts supports the plaintiff’s contention that the ALJ should ask for, and the VE
should provide, a reasonable explanation for the conflicts. The court disagreed with the
Magistrate Judge that the error was “merely technical.” That having been said, the fact
remains that this case presented an extremely close call. Because of this, the court is
determined that the position taken by the Commissioner was substantially justified and it
would not be appropriate to award EAJA fees in this case.
For the foregoing reasons, the plaintiff’s motion for attorney’s fees is respectfully
denied.
IT IS SO ORDERED.

July 22, 2011
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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