Payton v. Commissioner of Social Security Administration

Filing 33

ORDER granting 29 Motion for Attorney's Fees. Signed by Honorable David C Norton on 5/22/12. (juwo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
CYNTHIA L. PAYTON,

)
)
Plaintiff,
)
)
vs.
)
)
MICHAEL J. ASTRUE, COMMISSIONER )
OF SOCIAL SECURITY,
)
)
Defendant.
)
)

No. 8:10-cv-2276-DCN

ORDER

This matter is before the court on plaintiff’s motion for attorney’s fees
pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(A).
Plaintiff requests $5,468.39 in attorney’s fees on the ground that she is a prevailing
party under the EAJA. Defendant contests the awarding of such fees, asserting the
government’s position was substantially justified. For the reasons set forth below, the
court grants plaintiff’s motion.
I. BACKGROUND
Plaintiff Cynthia L. Payton filed an application for disability insurance
benefits (DIB) on June 3, 2005. The Commissioner denied her claim initially and on
reconsideration. Following two hearings before an Administrative Law Judge (ALJ),
in which Payton appeared pro se, the ALJ issued an unfavorable decision. In his
decision, the ALJ found Payton was not disabled during the period at issue. Applying
the five-step sequential process, the ALJ first found that Payton had the severe
impairments of status post left lower extremity and right shoulder injury. The ALJ

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additionally found that Payton had the non-severe impairments of tachycardia,
asthma, and allergies. Next, the ALJ determined that during the period at issue,
Payton did not have an impairment or combination of impairments that met or
medically equaled one of the impairments listed at 20 C.F.R. part 404, subpart P,
appendix 1. Further, the ALJ found that Payton had the residual functional capacity
to perform sedentary work with limitations of occasional overhead reaching with the
right arm and pushing and pulling, no climbing, and occasional stooping and
crawling. Finally, the ALJ determined that Payton was unable to perform any past
relevant work but that jobs existed in significant numbers in the national economy
that she could perform.
The Appeals Council denied Payton’s request for review, rendering the ALJ’s
decision the final decision of the Commissioner. Payton then filed suit in federal
court under 42 U.S.C. § 405(g), asserting that the ALJ’s decision was not supported
by substantial evidence. Payton alleged several errors committed by the ALJ,
including that the ALJ failed to adequately consider the combined effect of her
impairments. The magistrate judge filed a report and recommendation (R&R), in
which she agreed with this argument and found that the ALJ erred by giving
inadequate support for his finding that Payton’s “additional [nonexertional]
limitations have little or no effect on the occupational base of unskilled sedentary
work.” Tr. 43. A finding that Payton was unable to perform the full range of
sedentary work because of a combination of significant exertional and nonexertional
impairments would have precluded the ALJ’s exclusive reliance on the Medical-

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Vocational Guidelines, or Grids. Due to these deficiencies, the magistrate judge was
unable to conclude that substantial evidence supported the ALJ’s decision to deny
benefits. Accordingly, the magistrate judge recommended that the court reverse the
Commissioner’s decision and remand for further proceedings.
The Commissioner did not file objections to the R&R. This court thereafter
adopted the R&R and reversed and remanded to the ALJ.
II. DISCUSSION
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 make
an award unjust. 28 U.S.C. § 2412(d)(1)(A). Because this court remanded to the ALJ
pursuant to 42 U.S.C. § 405(g), Payton is considered the “prevailing party” under the
EAJA. See Shalala v. Schaefer, 509 U.S. 292, 302 (1993). Therefore, as the nonprevailing party, 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 quotation marks omitted).
There is no presumption that the government’s position was not substantially justified
simply because it lost the case. Crawford, 935 F.2d at 656.

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“The government’s non-acquiescence in the law of the circuit entitles the
claimant to recover attorney’s fees.” Id. 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.”).
Here, the Commissioner argues that its position was substantially justified
because the ALJ properly evaluated the combination of Payton’s alleged
impairments. More specifically, the Commissioner contends that the ALJ reasonably
found that Payton’s nonexertional limitations did not erode the occupational base of
unskilled sedentary level jobs and that the ALJ properly utilized the MedicalVocational Guidelines, or Grids, as a framework in reaching his decision. However,
the established law of this Circuit requires that an ALJ adequately explain whether a
claimant’s nonexertional limitations are significant such that they affect the
claimant’s residual functional capacity to perform work of which she is exertionally
capable. See Smith v. Schweiker, 719 F.3d 723, 725 (4th Cir. 1984); Hall v. Harris,
658 F.2d 260, 266 (4th Cir. 1981). As noted by the magistrate judge, the ALJ failed
to adequately conduct this analysis.1
Moreover, a finding that Payton was unable to perform the full range of
sedentary work because of the combined effect of her exertional and nonexertional
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The magistrate judge wrote, “The ALJ provided no reasoning for his assertion that
Plaintiff’s ‘additional limitations’ had ‘little or no effect on the occupational base,’ and the
Court has found nothing in the ALJ’s decision explaining Plaintiff could perform the full
range of sedentary work or that Plaintiff’s nonexertional limitations were insignificant. . . .
[T]he record indicates Plaintiff had nonexertional limitations such as mild limitations in
social functioning, concentration, and persistence—which were mentioned but not discussed
by the ALJ—as well as memory problems and nonexertional pain.” R&R at 22 (record cites
omitted).

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limitations would have precluded exclusive reliance on the Grids; however, the ALJ
simply concluded that Payton was not disabled pursuant to Grid Rule 201.28. It is
well established that when “nonexertional limitations . . . occur in conjunction with
exertional limitations,” the Grids “are not to be treated as conclusive.” Coffman, 829
F.2d at 518; Hammond v. Heckler, 765 F.2d 424, 426-27 (4th Cir. 1985). In that
scenario, the Commissioner bears the burden of proving through vocational
testimony, rather than exclusive reliance on the Grids, that despite a claimant’s
combination of exertional and nonexertional impairments, jobs exist in significant
numbers in the national economy that the claimant can perform. See Walker, 889
F.2d at 49; Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The ALJ’s failure
to perform the analysis required by this Circuit favors a finding that the
Commissioner’s position was not substantially justified.2
The Commissioner also argues that despite the ALJ’s error, the record still
supports his determination. This argument is essentially one of harmless error. In
adopting the magistrate judge’s R&R and remanding to the ALJ, this court already
concluded that the ALJ’s error was not harmless but instead necessitated further
administrative proceedings. Therefore, this argument is without merit.

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The magistrate judge found that the “ALJ’s conclusion appears to acknowledge the presence
of exertional and nonexertional limitations which restrict Plaintiff from performing the full
range of sedentary work,” but that the ALJ relied solely on the Grids. R&R at 22. Again, the
ALJ’s decision was devoid of any explanation that Payton’s nonexertional limitations were
insignificant or that Payton could perform the full range of sedentary work. “[T]he duty of
explanation is always an important aspect of the administrative charge . . . .” Hammond, 765
F.2d at 426.

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For these reasons, the court finds that the government 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.
III. CONCLUSION
Based on the foregoing, the court grants plaintiff’s motion for attorney’s fees
under the EAJA.3
AND IT IS SO ORDERED.

_________________________________
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
May 22, 2012
Charleston, South Carolina

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Plaintiff seeks an award of $5,468.39 in attorney’s fees at a rate of $169.30 an hour for a
total of 32.30 hours of work in federal court. See Pl.’s Mot. for Attorney’s Fees 1.
Defendant did not object to this calculation of the fee. Defendant does object to Payton’s
request that fees be awarded directly to her attorney. Payton signed an affidavit that assigns
all fees awarded under the EAJA to her attorney. However, the Supreme Court has recently
held that the EAJA requires attorney’s fees to be awarded directly to the litigant. See Astrue
v. Ratliff, 130 S. Ct. 2521, 2527 (2010) (“EAJA fees are payable to litigants and are thus
subject to offset where a litigant has outstanding federal debts.”); Stephens v. Astrue, 565
F.3d 131, 139 (4th Cir. 2009) (same). In addition, this court has held that EAJA fees are
payable to the plaintiff even where she has attached an affidavit assigning her rights in the fee
award to counsel. See Washington v. Astrue, No. 08-2631, 2010 WL 3023048, at *5 (D.S.C.
July 29, 2010). Therefore, the court grants attorney’s fees to plaintiff, not her attorney, in the
amount of $5,468.39.

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