Barringer vs Commissioner of Social Security Administration

Filing 34

ORDER granting 28 Motion for Attorney Fees Signed by Honorable David C Norton on 8/5/2014.(cahe, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
DONNA L. BARRINGER,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

No. 5:12-cv-3531-DCN

ORDER

This matter is before the court on a motion for attorney’s fees filed by claimant
Donna L. Barringer (“Barringer”) pursuant to the Equal Access to Justice Act (“EAJA”),
28 U.S.C. § 2412(d)(1)(A). Barringer requests $5,774.54 in attorney’s fees plus $350.00
in costs on the ground that she is a prevailing party under the EAJA. See Pl.’s Resp. 6.
The Commissioner argues against the awarding of such fees and costs, asserting that her
position was substantially justified.
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
government’s position was substantially justified or that special circumstances render an
award unjust. 28 U.S.C. § 2412(d)(1)(A). Because this court remanded to the
administrative law judge (“ALJ”) pursuant to 42 U.S.C. § 405(g), Barringer is considered
the “prevailing party” under the EAJA. See Shalala v. Schaefer, 509 U.S. 292, 302
(1993).
The government has the burden of proving that its position was substantially
justified. Crawford v. Sullivan, 935 F.2d 655, 658 (4th Cir. 1991). Evaluating whether
the government’s position was substantially justified is not an “issue-by-issue analysis”
1

but an examination of the “totality of circumstances.” Roanoke River Basin Ass’n v.
Hudson, 991 F.2d 132, 139 (4th Cir. 1993); see also Hensley v. Eckerhart, 461 U.S. 424,
437 (1983) (“A request for attorney’s fees should not result in a second major
litigation.”). “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). “The
governments non-acquiescence in the law of the circuit entitles the claimant to recover
attorney’s fees.” Crawford v. Sullivan, 935 F.2d 655, 658 (4th Cir. 1991); 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.”). There is no
presumption that losing the case means that the government’s position was not
substantially justified. Crawford, 935 F.2d at 656.
On February 27, 2014, the court adopted the magistrate judge’s report and
recommendation (“R&R”) and remanded this case for further administrative proceedings.
Order at 7, Feb. 27, 2014. The court found that the ALJ discounted the opinion of
Barringer’s long-time treating physician, Dr. Vann Beth Shuler, without sufficient
explanation. Id. Under the applicable regulations, when an ALJ decides to give a
treating physician’s opinion less than controlling weight, he or she “must be sufficiently
specific to make clear to any subsequent reviewers the weight the adjudicator gave to the
treating [physician’s] medical opinion and the reasons for that weight.” SSR 96-2p; see

2

also 20 C.F.R. § 404.1527(c)(2); Rivers v. Astrue, No. 4:11-cv-01386, 2012 WL
2590498, at *5 (D.S.C. July 5, 2012) (holding that the ALJ “must explain why a treating
physician’s opinion is discounted or rejected”); Avant v. Astrue, No. 4:11-cv-822, 2012
WL 1952657, at *5 (D.S.C. May 9, 2012) (finding that the ALJ “did not comply with the
proper analysis under SSR 96-2p by explaining what weight he was giving [the treating
physician’s] opinions and specifying what contradictory evidence on which he was
relying.”); Hilton v. Astrue, No. 6:10-cv-2012, 2011 WL 5869704, at *3 (D.S.C. Nov. 21,
2011) (finding the ALJ’s “conclusory reason” that the treating physician’s opinion “is
against the weight of the record as a whole” insufficient to satisfy SSR 96-2p).
Here, the ALJ’s explanation for his decision consisted entirely of the following:
“Dr. Shuler’s opinion is not supported by the evidence or by his1 own findings.” Tr. 17.
The Commissioner argues that a “reasonable person” could find the government’s
position was substantially justified despite a finding “that the ALJ had not given good
reasons for discounting Dr. Shuler’s opinion.” Def.’s Resp. 3-5. The court disagrees. As
in Hilton, the ALJ’s reasoning is entirely “conclusory.” 2011 WL 5869704, at *3.
Because the ALJ failed to adequately explain the reasoning for significantly discounting
Dr. Shuler’s opinion, the position of the Commissioner could not be substantially
justified. Furthermore, defendant’s reliance on Mortensen v. Astrue, 428 F. App’x 248
(4th Cir. 2011), is unfounded. The Fourth Circuit in Mortensen held that a
commissioner’s decision to discount a treating physician’s opinion may be substantially
justified where there are “small, but potentially meaningful inconsistencies in the medical
record.” Id. at 252. Although inconsistencies in the record may exist here, the ALJ here

1

As noted in the court’s earlier order, independent research indicates that Dr.
Shuler may be a woman.
3

completely failed to explain how the inconsistencies affected the weight given to Dr.
Shuler’s opinion.
For these reasons, the court finds that the Commissioner 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. Therefore, the court
GRANTS Barringer’s motion and awards fees in the amount of $5,774.54, plus $350.00
in costs.2
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
August 5, 2014
Charleston, South Carolina

2

Barringer seeks an award of $5,774.54 based on 30.75 attorney work hours at a
rate of $187.79 per hour. See Pl.’s Resp. 6. This rate is based on the statutory rate plus a
cost of living increase pursuant to the Consumer Price Index. Id. The Fourth Circuit has
noted that the CPI is an appropriate tool to utilize in calculating a cost of living rate
adjustment to a statutory fee. See generally Sullivan v. Sullivan, 958 F.2d 574 (4th Cir.
1992). Defendant does not object to the amount requested by plaintiff. Accordingly, the
court finds the amount requested is reasonable. Although Barringer has executed an
affidavit that assigns her fee award to her attorney, the EAJA requires attorney’s fees to
be awarded directly to the litigant. Astrue v. Ratliff, 130 S. Ct. 2521, 2527 (2010)
(“EAJA fees are payable to litigants”); Stephens v. Astrue, 565 F.3d 131, 139 (4th Cir.
2009) (“[T]he plain language of the EAJA provides that attorney's fees are payable to the
prevailing party-in this case the Social Security claimants-and not the attorney.”). This
court has held that EAJA fees are payable to a plaintiff even where she has attached an
affidavit assigning her rights in the fee award to counsel. See, e.g.,Whites v. Astrue, No.
8:10-cv-3302, 2012 WL 5867149, at *2 n.1 (D.S.C. Nov. 19, 2012). The court therefore
grants attorney’s fees to Barringer, not her attorney, in the amount of $5,774.54.
4