Richardson v. Commissioner of the Social Security Administration
ORDER denying 37 Motion for Attorney Fees under EAJA. Signed by Magistrate Judge Kaymani D West on 2/19/2016.(gnan )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Carolyn W. Colvin, Acting Commissioner
of Social Security Administration,
C/A No. 5:13-1846-BHH-KDW
This matter comes before the court on Plaintiff’s Motion for Attorney’s Fees under the
Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 (“Motion”).1 ECF 37. Plaintiff
documents 19.75 hours of work on this matter, for which she seeks an award of $6,155.78. ECF
No. 37-2. The Commissioner opposes the request, arguing her position in this matter was
substantially justified. ECF No. 38. Having considered the parties’ principal briefs, as well as
Plaintiff’s reply, ECF No. 39, the court denies Plaintiff’s Motion.
Plaintiff applied for social security disability benefits in December 2008, alleging she
became disabled on June 30, 2007, when she had quit working because of bronchitis, asthma,
and chronic obstructive pulmonary disease (“COPD”). Her applications were denied initially and
upon reconsideration. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”),
which was held on December 1, 2011. In a decision dated December 8, 2011, the ALJ found
Plaintiff was not disabled within the meaning of the Social Security Act. The Appeals Council
Pursuant to 28 U.S.C. § 636 and the court’s Standing Order, 3:12-mc-386-MBS, the Motion
was referred to the undersigned for entry of an order disposing of the Motion. ECF No. 43.
denied Plaintiff’s request for review on May 6, 2013, making the ALJ’s decision the final
decision for purposes of judicial review.
Plaintiff then brought an action seeking judicial review of the Commissioner’s decision,
alleging the Commissioner’s decision was not supported by substantial evidence. The court
reversed the Commissioner’s denial of benefits and remanded the matter to the Commissioner
for further consideration.
Standard of Review: Substantial Justification
The EAJA provides that 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
Commissioner’s position was substantially justified or that special circumstances make an award
unjust. 28 U.S.C. § 2412(d)(1)(A).2 Because this court remanded to the ALJ pursuant to 42
U.S.C. § 405(g), Plaintiff is considered the “prevailing party” under the EAJA. See Shalala v.
Schaefer, 509 U.S. 292, 302 (1993) (finding a plaintiff’s whose claim is remanded pursuant to
sentence four of Social Security Act is a “prevailing party” under the EAJA).
This Motion turns on whether the Commissioner’s position was “substantially justified.”
As the Court of Appeals for the Fourth Circuit recently stated:
The [EAJA] does not define the term “substantially justified.” The
Supreme Court has recognized, however, that the substantial-justification test is
one of “reasonableness in law and fact.” Pierce v. Underwood, 487 U.S. 552, 56465 (1988). That is, “[t]he Government’s position is substantially justified if it is . .
. ‘justified to a degree that could satisfy a reasonable person.’” Cody v.
Caterisano, 631 F.3d 136, 141 (4th Cir. 2011) (quoting Pierce, 487 U.S. at 565).
Of course, the Government need not prevail in an action for its position to have
been substantially justified. Rather, the Government will avoid paying fees as
long as “a reasonable person could [have thought]” that its litigation position was
“correct.” Pierce, 487 U.S. at 566 n.2.
“[In] determining whether the [G]overnment’s position in a case is
substantially justified, we look beyond the issue on which the petitioner prevailed
to determine, from the totality of the circumstances, whether the [G]overnment
The Commissioner does not dispute that Plaintiff satisfies other requisites of 28 U.S.C. § 2412.
acted reasonably in causing the litigation or in taking a [particular] stance during
the litigation.” Roanoke River Basin Ass’n v. Hudson, 991 F.2d 132, 139 (4th Cir.
Meyer v. Colvin, 754 F.3d 251, 255 (4th Cir. 2014). The Commissioner has the burden of
proving that its position was substantially justified. Id. (citing Crawford v. Sullivan, 935 F.2d
655, 658 (4th Cir. 1991)). In considering this Motion, the court is mindful that “‘[a] request for
attorney’s fees should not result in a second major litigation.’” Barringer v. Colvin, No. 5:12CV-3531-DCN, 2014 WL 3867990, at *1 (D.S.C. Aug. 5, 2014) (quoting Hensley v. Eckerhart,
461 U.S. 424, 437 (1983)).
Having considered the matter in full, the court finds the Commissioner has satisfied her
burden of demonstrating her litigation position in this matter was substantially justified. In
considering Plaintiff’s appeal, the court reviewed the administrative record in light of applicable
law and regulations and reversed and remanded the matter to the Commissioner for further
administrative action. See Order, ECF No. 34 (adopting Report and Recommendation (“R&R”);
R&R, ECF No. 28. Specifically, the court found the Commissioner’s consideration of listing
3.03 of the Commissioner’s listed impairments3 was insufficient under 20 C.F.R. Pt. 404, Subpt.
P, App. 1, § 12.04. See Order 4-5, R&R 28-31. 4
To facilitate a uniform and efficient processing of disability claims, regulations promulgated by
the Commissioner under the Social Security Act have reduced the statutory definition of
disability to a series of five sequential questions. One of these questions concerns whether a
claimant meets or equals the criteria of one or more “listed impairments,” which are compiled in
an extensive list in the Commissioner’s regulations. If a claimant meets the specified criteria of a
listed impairment for the required amount of time, he or she is considered disabled without the
need for assessing whether any jobs exist that the claimant could perform. See 20 C.F.R. Part
404, Subpt. P, App. 1; 20 C.F.R. § 404.1520(a)(4)(iii).
Listing 3.03 refers to asthma with:
B. Attacks (as defined in 3.00C), in spite of prescribed treatment and requiring
physician intervention, occurring at least once every 2 months or at least six times
In determining whether a claimant’s impairments satisfy the requirements for a relevant
listing, the ALJ must identify the relevant listed impairment or impairments, discuss the relevant
evidence, and compare that evidence to the requirements in the applicable listings. Cook v.
Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). In briefing her appeal, Plaintiff argued her
frequent visits to her primary care physician should be considered in determining whether
Plaintiff’s pulmonary attacks satisfied the Listing’s requirement of episodes requiring “extensive
treatment.” In the R&R, the court noted Plaintiff’s counsel at the time of the ALJ hearing had
conceded that it may be a “stretch” to find Plaintiff’s visits to her primary care physician could
satisfy the Listing’s requirements. R&R 28. Nonetheless, the R&R recommended remand in
large part because the ALJ did not specifically address the primary-physician visits in the listing
analysis, making the undersigned unable to determine whether substantial evidence supported the
decision. Id. at 29.
a year. Each in-patient hospitalization for longer than 24 hours for control of
asthma counts as two attacks, and an evaluation period of at least 12 consecutive
months must be used to determine the frequency of attacks.
20 C.F.R. pt. 404, Subpart P, App. 1 § 3.03B. Section 3.00C refers to episodic respiratory disease
and states in part:
Attacks of asthma, episodes of bronchitis or pneumonia or hemoptysis (more than
blood-streaked sputum), or respiratory failure as referred to in paragraph B of
3.03, 3.04, and 3.07, are defined as prolonged symptomatic episodes lasting one
or more days and requiring intensive treatment, such as intravenous
bronchodilator or antibiotic administration or prolonged inhalational
bronchodilator therapy in a hospital, emergency room or equivalent setting.
Hospital admissions are defined as inpatient hospitalizations for longer than 24
hours. The medical evidence must also include information documenting
adherence to a prescribed regimen of treatment as well as a description of
physical signs. For asthma, the medical evidence should include spirometric
results obtained between attacks that document the presence of baseline airflow
20 C.F.R. pt. 404, Subpart P, App. 1 § 3.00C (emphasis added).
In defending the ALJ’s decision and objecting to the R&R, the Commissioner argued the
ALJ’s listing analysis was sufficient. The Commissioner pointed to Plaintiff’s concession at the
ALJ hearing that the physician visits did not satisfy the listing’s “attack” definition. ECF No. 16
at 12. The Commissioner also examined evidence referred to by Plaintiff in her brief, arguing
Plaintiff had not satisfied the number of attacks the listing required. Id. at 12-15.
Relevant to considering the instant Motion, in considering the R&R, the court noted the
Commissioner had “posed reasonable challenges to the caliber of [evidence to be considered on
remand] and the unlikelihood of success on remand.” Order 5. The court noted the R&R’s
recommendation of remand was an “admittedly overcautious” but “right” “outcome.” Id. at 4. As
the Commissioner points out, to have been “substantially justified,” the Commissioner needs to
show that a “reasonable person could have found her position correct.” The Commissioner points
to this language in the Order in arguing her position was substantially justified. Def.’s Mem. 2
(citing Meyer, 754 F.3d at 255). Further, the Commissioner argues the ALJ’s decision was
reasonable, noting the ALJ indicated at the hearing that she had reviewed treatment records and
did not believe they supported the listing. Def.’s Mem. 2 (citing Tr. 119). Further, the ALJ
referenced the physician visits in the listing analysis, albeit it in insufficient detail based on the
court’s determination. The Commissioner also argued detailed focus on each physician visit was
unnecessary because it was not required that every piece of evidence be discussed in detail in an
ALJ’s decision. ECF No. 16 at 16-17.
While she spends many pages making her argument for fees, at its essence, Plaintiff’s
position is that the Commissioner’s position was not substantially justified because it was not
“reasonable in law and fact,” the court agreed with Plaintiff’s argument that remand was
appropriate, and the Commissioner “essentially conceded” the correctness of Plaintiff’s
arguments by never disputing certain facts or cases cited in the appellate briefs. See Pl.’s Mem.
and Reply. The court disagrees.
Here, although the court ultimately found the ALJ had not sufficiently articulated her
reasoning in connection with the listing analysis, the Commissioner’s position in support of the
ALJ’s decision had a “basis both in law and fact that could satisfy a reasonable person.” Hurell
v. Barnhart, 444 F. Supp. 2d 574, 577 (D.S.C. 2006). On the whole, the court finds that the
Commissioner has met its burden of showing that its position was substantially justified. See
Hudson, 991 F.2d at 139 (determination of whether Commissioner’s position was substantially
justified is not an “issue-by-issue analysis” but an examination of the “totality of the
circumstances”); Hurrell, 444 F. Supp. 2d at 577 (finding Commissioner’s position was
substantially justified even though ALJ’s reasoning was incomplete and failed to adequately
explain his rationale). Here, a “reasonable person” readily could have been satisfied that the
ALJ’s was correct and that the Commissioner “acted reasonably” in its litigation strategy. Meyer,
754 F.3d at 255.
In this matter, the court acknowledged “‘there is no hard and fast rule as to the degree of
specificity required in an ALJ’s findings.’” R&R 29 (quoting Patterson v. Colvin, No. 4:121021-DCN-TER, 2013 WL 4441986, at *5 (D.S.C. Aug. 15, 2013) (internal citation omitted)).
On the one hand, the court noted the magistrate judge had “reasonably concluded” the ALJ’s
consideration of the doctor’s visits was not clear. On the other hand, the court noted the
Commissioner had posed “reasonable challenges” concerning the evidence. Order 4-5; see also
id. at 4 (finding outcome “right” but “overcautious”). Unquestionably, reasonable minds could
differ in determining whether the Commissioner’s position was correct. The Commissioner has
satisfied her burden of demonstrating her position was “substantially justified.”
The court finds the Comm
missioner’s position was substantial justified. The court d
Plaintiff’s Motion for EAJA Atto
orney’s Fees ECF No. 3
IT IS SO ORD
Kayman D. West
States Magistrate Judge
February 19, 2016
Florence, South Caro
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