Locke v. Commissioner Social Security Administration

Filing 49

ORDER granting 44 Motion for Attorney Fees. Signed by Honorable David C Norton on October 25, 2017.(span, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
ALISA LOCKE,
Plaintiff,
vs.
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NANCY C. BERRYHILL , Acting
Commissioner of the Social Security
Administration,
Defendant.

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No. 6:12-cv-2751-DCN
ORDER

This matter is before the court on a motion for attorney’s fees filed by claimant
Alisa Locke (“Locke”) pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412(d)(1)(A). Locke requests $5,488.25 in attorney’s fees as a prevailing party under
the EAJA. ECF No. 44 at 1. Nancy C. Berryhill, Acting Commissioner of the Social
Security Administration (the “Commissioner”), argues that Locke is not entitled to such
fees and costs because the Commissioner’s position in this litigation was substantially
justified. The court finds that the Commissioner’s position was not substantially justified
and grants Locke’s attorney fee petition.
I. BACKGROUND
Locke filed an application for disability insurance benefits (“DIB”) on April 28,
2011, alleging disability beginning on April 22, 2011. The Social Security
Administration denied Locke’s claim initially and on reconsideration. Locke requested a
hearing before an administrative law judge (“ALJ”), and a hearing was held on January
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Nancy A. Berryhill became the Acting Commissioner of Social Security on Jan
23, 2017. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the court
substitutes Nancy A. Berryhill for Carolyn W. Colvin as Defendant in this action.”
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19, 2012. The ALJ issued its decision on February 29, 2012, finding that Locke was not
disabled under the Social Security Act. The Appeals Council declined to review the
ALJ’s decision, and Locke filed the action for judicial review on September 21, 2012.
On May 8, 2013 Locke filed a brief asking that the court remand her case for further
proceedings. The Commissioner responded to Locke’s brief on June 19, 2013. On
November 13, 2013, the magistrate judge issued a report and recommendation (“R&R”),
recommending that the ALJ’s decision be affirmed and Locke’s motion to remand be
denied. Locke objected to the R&R on December 16, 2013 and the Commissioner filed a
response to Locke’s objections on January 2, 2014. On March 6, 2014, this court
reversed the Commissioner’s decision and remanded the case for further administrative
proceedings. The court found that the ALJ erred by failing to consider whether Locke’s
impairments, considered in combination, met or equaled a listing found on the Listing of
Impairments. Due to this deficiency, the court concluded that substantial evidence did
not support the ALJ’s decision.
On April 2, 2014 the Commissioner filed a motion to amend the court’s judgment,
which the court denied on August 29, 2014. On September 23, 2014 Locke filed a motion
for attorney’s fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. §
2412(d). The Commissioner opposed the motion on October 9, 2014, and Locke
responded on October 19, 2014.
II. DISCUSSION
A.

Prevailing Party

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

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government’s position was substantially justified or that special circumstances render an
award unjust. 28 U.S.C. § 2412(d)(1)(A). To qualify as a “prevailing party,” a party
“must succeed on the merits of a claim.” S-1 By & Through P-1 v. State Bd. of Educ. of
N.C., 6 F.3d 160, 170 (4th Cir. 1993) (Wilkinson, J., dissenting), adopted as majority
opinion, 21 F.3d 49 (4th Cir. 1994) (en banc). “In other words, success must be
something buttressed by a court’s authority or required by a rule of law. The lawsuit
must materially alter the ‘legal relationship’ between plaintiffs and defendants.” Id.
Because this court reversed and remanded Locke’s case to the Commissioner for
administrative action pursuant to 42 U.S.C. § 405(g), Locke is considered the “prevailing
party” under the EAJA. See Shalala v. Schaefer, 509 U.S. 292, 302 (1993).
B.

Substantially Justified

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”
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
government’s non-acquiescence in the law of the circuit entitles the claimant to recover

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attorney’s fees.” Crawford, 935 F.2d at 658; 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.
The government makes two arguments in opposition to Locke’s fee motion: (1)
that the government’s position was reasonable as evidenced, at least in part, by the fact
that the Magistrate Judge found in the Commissioner’s favor in all respects and
recommended affirming her decision, and (2) that there are competing interpretations of
Walker. ECF No. 45 at 4. The court addresses each in turn
1.

Magistrate Judge’s R&R

First, the Commissioner argues the ALJ’s failure to explain his finding that
Locke’s combined impairments did not meet or equal a Listing does not entitle her to
attorney’s fees when, “at least in part, by the fact that Magistrate Judge McDonald found
in the Commissioner’s favor in all respects and recommended affirming her final
decision.” ECF No. 45 at 4. Locke argues that the Commissioner’s objection to awarding
attorney’s fees based on a favorable R&R is unreasonable. ECF No. 46 at 2.
The court in unaware of any precedent that a favorable R&R in and of itself is
sufficient to satisfy the “substantial justification” standard for an EAJA fee motion.
Certainly, courts have found that a favorable R&R may weigh in favor of finding that the
government was substantially justified in taking a certain position. See Mckoy v. Colvin,
2013 WL 6780585, at *3 (D.S.C. Dec. 19, 2013) (finding that an R&R which affirmed

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the Commissioner’s position was one factor—but not the determinative factor—to
suggest the Commissioner’s position was substantially justified). However, as explained
below, the Commissioner fails to provide any other factors that in combination with a
favorable R&R would suggest that the Commissioner’s position was substantially
justified.
2.

Competing interpretation for combination of impairments

Second, Locke argues that she is entitled to receive attorney’s fees under the
EAJA as the prevailing party because the ALJ failed to properly consider Locke’s severe
impairments in combination, and that this was not a substantially justified position for the
government to take. ECF No. 46 at 2. The court agrees.
The requirement that an ALJ must consider the combined effects of the
claimant’s impairments is well-established. Under the applicable regulations, the ALJ
shall consider the combined effect of all the individual’s impairments “without regard to
whether any such impairment, if considered separately, would be of such severity.” 20
C.F.R. § 404.1523 (2013). The Fourth Circuit has held that “in evaluating the effect of
various impairments, the Secretary must consider the combined effect of a claimant’s
impairments and not fragmentize them.” Walker v. Bowen, 889 F.2d 47, 49 (4th Cir.
1989). In Walker, the ALJ found the claimant suffered several ailments and noted the
effect of each impairment separately, concluding “that the claimant did not have an
impairment or combination of impairments listed in, or medically equal to, one listed [in
the appendix.]” Id. In rejecting the ALJ’s conclusion, the Walker court found that the
ALJ neither analyzed nor explained his evaluation of the cumulative effect of the
claimant’s impairments. Id. at 49–50. Under the applicable regulation and Walker, it is

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clear that the ALJ must consider the combined effect of these impairments in determining
the claimant's disability status.
The Commissioner argues there are competing interpretations of Walker. In
support of this proposition, the Commissioner cites to this court’s order denying the
Commissioner’s Motion to Amend, which noted that “district courts within the circuit
have developed competing interpretations of Walker’s holding.” ECF No. 45 at 4.
However, in so doing the Commission fails to address this court’s explanation on that
point—that the court was more persuaded by the line of cases interpreting Walker that
required more discussion by the Agency. ECF No. 42 at 3–4. Instead, the Commission
cites to Tenth Circuit cases for the proposition that “when governing law is unclear or in
flux, it is more likely that the government proposition is substantially justified.” ECF No.
45 at 4. Certainly, when governing law is actually unclear this court agrees that it is more
likely to find that the government’s position is substantially justified. But historically,
courts within this district have been quite clear in interpreting Walker to require an
explanation of combined effect of impairments and in turn consideration of individual
impairment is insufficient. See e.g., Brown v. Astrue, 2013 WL 642189, at * 9 (D.S.C.
Jan. 31, 2013), adopted by 2013 WL 645958 (D.S.C. Feb. 21, 2013) (holding that Walker
requires the ALJ to consider “the combined effect of these impairments in determining
the claimant’s disability status”); Saxon v. Astrue, 662 F. Supp. 2d 471, 479 (D.S.C.
2009) (collecting cases in this district finding that Walker requires adequate explanation
and evaluation, which includes an explanation of the ALJ’s evaluation of the combined
effect of the claimant’s impairments); Alonzeau v. Astrue, 2008 WL 313786, at *3
(D.S.C. Feb. 1, 2008) (reaffirming its commitment to enforcing the requirements of

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Walker that the ALJ “make express his treatment of the combined effects of all
impairments”); Lemacks v. Astrue, 2008 WL 2510087 at *4 (D.S.C. May 29, 2008)
(holding that a conclusory statement followed by an evaluation that progresses through
each severe impairment individually is “not sufficient to foreclose disability” under
Walker).
A review of the record reveals that the ALJ failed to properly consider Locke’s
impairments in combination as required by Walker. Indeed, the ALJ’s explanation for
his decision consisted entirely of the following:
The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1.”
Tr. 16. The Commissioner now argues that this court has previously required that a
claimant make some showing that further discussion of their combined impairments
would affect the outcome citing cases were the court has found a “harmless” error where
the ALJ’s explanations was “too thin” or should be “more thorough.” ECF No. 45 at 5.
However, the depth and substance of the analysis was not at issue in this case. Rather,
what concerned the court was that the ALJ failed to account for “combined impairments.”
Like in Brown, the ALJ included no findings regarding the combined effect of claimants
physical and mental impairments, or even any findings suggestive of consideration of the
combined impairments, other than the ALJ’s generic declaration that “[t]he claimant does
not have an impairment or combination of impairments that meets or medically equals
one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, and 404.1526).” Tr. at 16. Such a statement is insufficient under
Walker. See Lucas v. Astrue, 2012 WL 265712, at *14 (D.S.C. Jan. 23, 2012) (“[E]ven

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if such boilerplate verbiage could suffice to demonstrate the ALJ considered all of
Plaintiff’s impairments, it does not purport to indicate he considered all impairments in
combination.”).
In line with Walker and its progeny in this district, after carefully considering the
circumstances of this case, the court concludes that the government’s position was not
“substantially justified” as required to avoid a fee award. Accordingly, Locke’s motion
for attorney’s fees is granted in full.
III. CONCLUSION
For these reasons, the court concludes 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 Locke’s motion for attorney’s fees in the amount of $5,488.25.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
October 25, 2017
Charleston, South Carolina

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