Jordan v. Astrue

Filing 34

ORDER denying 26 Motion for Attorney Fees Signed by Honorable David C Norton on 6/2/15.(akob, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
BRANDON JORDAN,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 8:12-cv-01676-DCN

ORDER

This matter is before the court on a motion for attorney’s fees filed by claimant
Brandon Jordan (“Jordan”) pursuant to the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412(d)(1)(A). Jordan requests $4,644.68 in attorney’s fees on the ground that
he is a prevailing party under the EAJA. The Commissioner contests Jordan’s request for
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), Jordan is considered
the “prevailing party” under the EAJA. See Shalala v. Schaefer, 509 U.S. 292, 302
(1993) (noting that “a party who wins a sentence-four remand order is a prevailing
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). Evaluating whether
the government’s position was substantially justified is not an “issue-by-issue analysis”
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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
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.
In this case, the magistrate judge recommended that the court find that the ALJ
properly discounted the opinion of Dr. Dennis Chipman (“Dr. Chipman”), an examining
physician, based on the ALJ’s finding that the opinion “was obtained through an attorney
referral, . . . was not obtained for the purpose of treatment and [] was inconsistent with
the other medical opinions of record.” Report & Recommendation 31. On September
20, 2013, after Jordan filed objections to the report and recommendation (“R & R”), this
court rejected the R&R on the basis that the “ALJ’s decision inadequately explained how

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Dr. Chipman’s opinion is inconsistent with the record and because attorney referral alone
may not alone provide grounds for rejecting medical opinions.” Order 15.
In his decision, the ALJ stated that he afforded little weight to the opinion of Dr.
Chipman because
the claimant underwent the examination that formed the basis of the
opinion in question not in an attempt to seek treatment for symptoms, but
rather, through attorney referral and in connection with an effort to
generate evidence for the current appeal. Further, Dr. Chipman was
presumably paid for the report. Although such evidence deserves due
consideration, the context in which it was produced cannot be entirely
ignored. Moreover, Dr. Chipman’s opinion it is not consistent with the
longitudinal record.
Tr. 22. Elsewhere in his decision, the ALJ also noted that Dr. Chipman formed his
opinion after examining Jordan one time. Tr. 17.
The court relied on See v. Wash. Metro. Area Transit Auth., 36 F.3d 375, 384 (4th
Cir. 1994), in finding that the ALJ failed to adequately explain why he found Dr.
Chipman’s opinion inconsistent with the record. The court recognized that “[t]he ALJ
need not set forth her findings in a particular format, . . . , and the ALJ does lay out
Jordan’s medical history in some detail.” Order 15. However, the court ultimately found
that “the ALJ’s cursory discussion of the weight assigned to Dr. Chipman’s opinion
presents ‘inadequate information to accommodate a thorough review.’” Order 15
(quoting Wash. Metro, 36 F.3d at 384).
The Commissioner asserts that her position was substantially justified because
reasonable minds could disagree on whether the ALJ properly discounted Dr. Chipman’s
opinion. In support, she notes that the ALJ provided a detailed discussion of the medical
record, which included medical opinions inconsistent with Dr. Chipman’s opinion. The

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Commissioner argues that the ALJ’s decision, when read in its entirety, provides context
to the ALJ’s finding that Dr. Chipman’s opinion was inconsistent with the record.
The Commissioner also notes that the magistrate judge “found no deficiency in
the ALJ’s discounting of Dr. Chipman’s opinion and recommended that the ALJ’s
decision be affirmed.” Def.’s Resp. 4. She cites several cases from this district in which
the court found that the Commissioner’s position was substantially justified in part
because the magistrate judge came to a different conclusion than the court. See Proctor
v. Astrue, No. 5:11-cv-311, 2013 WL 1303115, at *2 (D.S.C. Mar. 29, 2013) (“The fact
that the Magistrate Judge sided with the Commissioner and this court disagreed with that
recommendation clearly illustrates that the legal issue involved was a close one about
which reasonable minds could disagree.”); McCraven v. Astrue, No. 0:09-cv-1305, 2011
WL 743228, at *1 (D.S.C. Feb. 24, 2011) (“Here, the Government’s position was not
unjustified. For one, the Magistrate Judge recommended affirming.”); Levine v. Astrue,
No. 0:09-cv-1737, 2010 WL 3522383, at *2 (D.S.C. Sept. 3, 2010) (noting that the court
came to a different conclusion than the magistrate judge and finding that “reasonable
minds disagreed about the Commissioner’s final decision”). The Commissioner argues
that the magistrate judge’s affirmance of the ALJ’s decision evidences the fact that
reasonable minds could disagree on the ALJ’s treatment of Dr. Chipman’s opinion.
The court is persuaded by the Commissioner’s arguments and relevant case law
within this district. While her position did not warrant affirmance, it had “a reasonable
basis in law and in fact” such that “a reasonable person could think it correct.”
Underwood, 487 U.S. at 566 n.2. As a result, the Commissioner’s position was
substantially justified.

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For these reasons, the court finds that the Commissioner has met her burden of
showing that her position was substantially justified. Therefore, the court DENIES
Jordan’s motion for attorneys’ fees.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
June 2, 2015
Charleston, South Carolina

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