Williams v. Commissioner Social Security Administration

Filing 34

ORDER denying 30 Motion for Attorney Fees. Signed by Honorable J Michelle Childs on 1/13/17.(alew, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Jamie Williams, a/k/a James L. Williams,

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Plaintiff,
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v.
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Carolyn W. Colvin, Acting Commissioner )
of Social Security Administration,
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Defendant.
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___________________________________ )

Civil Action No. 8:13-cv-01563-JMC

ORDER AND OPINION

This matter is before the court on Plaintiff Jamie Williams’ (“Plaintiff”) Motion for
Attorney’s Fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (ECF No.
30.) The Commissioner opposes the motion on the ground that her position in this case was
substantially justified. (ECF No. 31.) For the reasons that follow, the court DENIES the Motion
for Attorney’s Fees (ECF No. 30).
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
In April 2010, Plaintiff filed an application for Disability Insurance Benefits (“DIB”) due
to severe impairments of bilateral L4-5 foraminal stenosis and mild bilateral facet arthropathy,
bilateral knee replacement, severe low back pain with severe pain radiating down the left leg. (ECF
No. 17-5 at 2; ECF No. 17-6 at 62.) Plaintiff’s application was denied initially and upon
reconsideration. (ECF No. 17-4 at 2-5, 7-13.) After Plaintiff requested an administrative hearing,
an Administrative Law Judge (“ALJ”) found that Plaintiff was not under a disability as defined by
the Social Security Act. (ECF No. 17-2 at 23, 30.) Relevant here, the ALJ found that Plaintiff’s
“use of upper extremities to operate push or pull controls is limited as follows: occasionally
bilaterally.” (Id. at 26). Relying on the testimony of a vocational expert (“VE”), the ALJ also
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determined that Plaintiff had the residual functional capacity (“RFC”) to perform the job of a
touch-up screener or printed circuit board assembler (the “job”). (Id. at 29.) Because of Plaintiff’s
RFC to perform the job, the ALJ determined that Plaintiff was not disabled. 1 (Id. at 30.) Thereafter,
the Appeals Council denied Plaintiff’s request for review. (Id. at 2-8.)
In June 2013, Plaintiff commenced the instant action in federal district court to obtain
judicial review of the Commissioner’s final decision denying Plaintiff’s claim for DIB. (ECF No.
1.) Among other things, Plaintiff argued that, under the definitions provided by the Selected
Characteristics of Occupations (“SCO”), published by the Department of Labor, the job required
frequent handling, which, he argued, conflicted with the ALJ’s finding that Plaintiff was limited
to only occasionally bilaterally operating push or pull controls with the upper extremities. (See
ECF No. 19 at 21-23 (citing Dep’t of Labor, Selected Characteristics of Occupations Defined in
the Revised Dictionary of Occupational Titles 201 (1993)).) In Plaintiff’s view, the VE necessarily
incorporated the SCO definition of the job when he testified that Plaintiff could perform the job.
According to Social Security Administration regulations:
When there is an apparent unresolved conflict between VE or [vocational
specialist (“VS”)] evidence and the [Dictionary of Occupational Titles
(“DOT”)], the adjudicator must elicit a reasonable explanation for the conflict
before relying on the VE or VS evidence to support a determination or decision
about whether the claimant is disabled. . . . The adjudicator must resolve the
conflict by determining if the explanation given by the VE or VS is reasonable
and provides a basis for relying on the VE or VS testimony rather than on the
DOT information.

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The ALJ also found that Plaintiff could perform two other jobs and relied on this finding in
determining that Plaintiff was not disabled. (See ECF No. 17-2 at 29.) The Magistrate Judge
determined that this finding was in error (ECF No. 23 at 21), and the court adopted this
determination (ECF No. 28 at 4-5).
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Social Security Ruling 00-4p. 2 The Magistrate Judge rejected Plaintiff’s argument, finding that
“there is no conflict between the SCO and the VE’s testimony causing the ALJ to have needed to
elicit an explanation, and the ALJ’s determination regarding Plaintiff’s ability to perform the job
. . . is supported by substantial evidence.” (ECF No. 23 at 24.) Accordingly, on September 3, 2014,
the Magistrate Judge issued her recommendation that the Commissioner’s final decision denying
Plaintiff’s claim for DIB be affirmed. (Id.) Plaintiff timely filed objections (ECF No. 25).
Reviewing the Report and Recommendation, the court could not reach the same conclusion
as the Magistrate Judge that no conflict existed. In the court’s estimation, it was “not entirely clear”
whether “frequent handling” would include tasks that go beyond “occasionally pushing or
pulling,” in part, because the DOT and the SCO do not define pushing or pulling. (ECF No. 28 at
5-6.) Creating more uncertainty as to whether a conflict existed, the court could not discern why
the ALJ had included the limitation of occasional pushing and pulling, explaining that
[i]f the restriction was made due to a strength limitation, [the Commissioner]
has the stronger argument. However, if the restriction was based on other
rationale, Plaintiff’s argument potentially has merit. Without a clear
explanation of the ALJ’s reasoning behind the restriction, the distinction
between these terms in this scenario, and the potential ability of Plaintiff to
perform this task, is unclear.
. . . . [P]ush and pull limitations do not necessarily equate to limitations
in reaching, handling, or fingering, however, . . . such a limitation may be
appropriate in some circumstances. As such, further explanation from the VE
of the requirements of [the job] in relation to Plaintiff’s limitations is necessary
for the ALJ to properly explain and clarify his decision.
(Id. at 6.) Accordingly the court rejected in part the Report and Recommendation, reversed the
Commissioner’s decision, and remanded the case to the Commissioner “to get clarity from an ALJ
regarding his findings.” (Id. at 7.)

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For purposes of this rule, the DOT includes SCO definitions. See Social Security Ruling 00-4p.
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On June 25, 2015, Plaintiff filed the instant Motion for Attorney’s Fees under the EAJA,
contending that the Commissioner’s position was not substantially justified. (ECF No. 30; see ECF
No. 30-6 at 8-9.) In response, the Commissioner argues that her position was substantially justified,
explaining that the absence of substantial evidence does not equate to the absence of substantial
justification, noting that the Magistrate Judge recommended affirming her decision, and observing
that the ALJ’s limitation was not clearly in conflict with the VE’s testimony and may be found not
to be so on remand. (See ECF No. 31.) In reply, Plaintiff contends that the conflict between the
ALJ’s limitation and the VE’s testimony was apparent and that the Commissioner’s arguments
ignore Social Security Ruling 00-4p and well-settled case law in this jurisdiction and, thus, cannot
be substantially justified (ECF No. 32 at 1-3). He also emphasizes that “[t]he question is whether
or not the Commissioner’s position regarding the ALJ’s failure to resolve a potential conflict was
substantially justified.” (Id. at 4.)
II. LEGAL STANDARD AND ANALYSIS
“A party who prevails in litigation against the United States is entitled to EAJA attorneys’
fees upon timely petition for them if the government’s position was not substantially justified and
no special circumstances make an award unjust.” Thompson v. Sullivan, 980 F.2d 280, 281 (4th
Cir. 1992) (internal quotation marks omitted). The Commissioner has the burden of demonstrating
substantial justification in both fact and law. Meyer v. Colvin, 754 F.3d 251, 255 (4th Cir. 2014).
“[T]he test of whether or not a government action is substantially justified is essentially one of
reasonableness.” Smith v. Heckler, 739 F.2d 144, 146 (4th Cir. 1984) (internal quotation marks
omitted). If the Commissioner’s position is based on an arguably defensible administrative record,
then it is substantially justified. Crawford v. Sullivan, 935 F.2d 655, 658 (4th Cir. 1991). The
Commissioner’s position may be justified even though it is incorrect and may be substantially

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justified if a reasonable person could believe the government’s position was appropriate. Pierce v.
Underwood, 487 U.S. 552, 566 n.2 (1988); Meyer, 754 F.3d at 255.
As an initial matter, the court notes that the Magistrate Judge’s recommendation that the
Commissioner’s decision be affirmed is not dispositive. See Howard v. Barnhart, 376 F.3d 551,
554 (6th Cir. 2004) (disapproving “overemphas[is]” of the “fact that the ALJ’s decision was
adopted by the Magistrate Judge”); McKoy v. Colvin, No. 4:12-cv-1663-CMC-TER, 2013 WL
6780585, at *3 (D.S.C. Dec. 19, 2013) (explaining that Magistrate Judge’s recommendation to
affirm is “not determinative” of substantial justifiability). The court agrees with the Commissioner,
however, that the Magistrate Judge’s recommended affirmance is a factor that, to some extent,
should weigh in the Commissioner’s favor. See McKoy, No. 4:12-cv-1663-CMC-TER, at *3
(“While not determinative, the fact that the Magistrate Judge recommended that the
Commissioner’s decision be affirmed suggests that the Commissioner’s decision was substantially
justified.”). Aside from the Magistrate Judge’s recommendation in favor of the Commissioner, the
court finds the Commissioner’s position was substantially justified for other reasons.
First, to the extent Plaintiff argues that the Commissioner’s position is not substantially
justified on the basis that a conflict existed between the SCO’s definition and the VE’s testimony,
the court rejects this argument. Likely, if the court had found that such an apparent unresolved
conflict existed, the Commissioner’s position would not be substantially justified, because there is
well-established law that, in the face of a clear conflict, the ALJ has a duty to elicit a reasonable
explanation for the conflict before relying on the VE’s testimony, which did not occur here. See
Brown v. Colvin, No. 4:12-cv-2311-DCN, 2015 WL 6745986, at *2-3 (D.S.C. Nov. 4, 2015)
(collecting cases). However, the court did not find that an apparent conflict existed, which the ALJ
failed to resolve; rather, the court found that it could not discern whether or not a conflict existed

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because of the lack of clarity in both the SCO’s definitions and the ALJ’s limitation. The court’s
analysis confirms this reasoning: remand was necessary not for the ALJ to resolve a clear conflict
but for the ALJ to determine, in the first instance, whether a conflict exists. In the court’s
estimation, it remains possible for the ALJ to determine that no conflict exists, depending on the
definitions of pushing and pulling as they relate to the SCO and the basis for the ALJ’s limitation.
Because it was not clear whether a conflict existed, the Commissioner was substantially justified
in arguing that Social Security Ruling 00-4p’s mandate that the ALJ elicit a reasonable explanation
for the conflict from the VE did not apply here.
Second, to the extent Plaintiff argues that the Commissioner’s position was not
substantially justified on the basis that the ALJ failed to inquire whether a conflict existed, the
court rejects this argument too. Pursuant to regulations, “as part of the [ALJ’s] duty to fully develop
the record, the [ALJ] will inquire, on the record, as to whether or not there is such consistency”
between the VE’s testimony and the SCO’s definitions. Social Security Ruling 00-4p. Notably, it
does not appear that Plaintiff argued that the ALJ failed in this regard either before the ALJ or
before the Magistrate Judge or the undersigned. (See ECF No. 17-2 at 63; ECF No. 19 at 21-23;
ECF No. 21 at 6-9; ECF No. 25 at 2-6). Moreover, because no conflict was apparent and because
the ALJ inquired as to whether the VE’s testimony was consistent with the DOT (see ECF No. 172 at 57, 59, 63) and specifically referred to Social Security Ruling 00-4p’s mandates (see id. at 30),
it appears unlikely that Plaintiff would have succeeded on such an argument, see Allen v. Comm’r
of Soc. Sec. Admin., No. 8:13-cv-03477-TLW, 2015 WL 5315941, at *17-18 (D.S.C. Sept. 9,
2015); Yurek v. Astrue, No. 5:08-cv-500-FL, 2010 WL 1779938, at *3 (W.D.N.C. Feb. 4, 2010),
adopted by 2010 WL 1779934 (W.D.N.C. May 3, 2010). Because the issue was never raised by
Plaintiff and because the Commissioner was likely to prevail on the issue in any event, it was

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reasonable for the Commissioner to defend the ALJ’s decision despite the potential that a conflict
existed.
Third, the Commissioner was substantially justified in arguing that remand was not
necessary when there only existed a non-apparent, potential conflict existed based on an issue of
first impression regarding the construction of undefined terms in the SCO in relation to a limitation
imposed by the ALJ. Plaintiff did not cite, and the court is unaware of, any authority stating or
suggesting that “frequent handling” would include tasks that go beyond “occasionally pushing or
pulling.” Indeed, the rationale behind the court’s decision to remand was that the ALJ should make
such a determination in the first instance because, although it is possible that frequent handling
might include tasks that go beyond occasionally pushing or pulling, it is equally possible that it
might not. For this reason, it is possible that the court might have concluded that the ALJ’s
limitation, the VE’s testimony, and the SCO definitions were all consistent. The Commissioner’s
position that the court should conclude that no conflict existed was therefore defensible and
substantially justified. See Yurek, 2010 WL 1779938, at *5.
In sum, the court can say it no better than the Magistrate Judge in Yurek:
Simply put, the ALJ ensured that the administrative proceedings were
conducted at the final sequential level in a manner satisfying the basic
requirements of the Commissioner’s regulations, including S.S.R. 00–4p, as
those requirements have been applied in the decisional authority of the Fourth
Circuit. The decision to remand the case was not the result of the ALJ’s
disregard of S.S.R. 00–4p or an intentional misapplication of this regulation to
the specific facts of the case. Nor was the decision to remand the result of the
ALJ’s substantially unjustified position on the facts. Rather, remand was the
result of Plaintiff’s identification of a discrepancy between the VE’s testimony
and the DOT subsequent to the administrative hearing and raised in this Court
as an issue of first impression. Given the Court had no authority to reconcile
the discrepancy raised by Plaintiff and could not substitute its own vocational
judgment as to whether Plaintiff could perform the jobs identified by the VE,
remand to the ALJ was necessary . . . .
....
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. . . . [T]he novelty of the question within the Fourth Circuit weighs in
the government’s favor when analyzing the reasonableness of the
government’s litigation position. During the course of the underlying litigation,
there was no Fourth Circuit precedent on the issue of whether [the] limitation
. . . conflicted with the DOT . . . . In fact, at the time of the underlying action,
case law within this Circuit bearing directly on the issue of what [relevant
definitions] under the DOT correspond to [the] limitation . . . was sparse (and
remains so).
At the time of the underlying action, neither the Fourth Circuit nor this
district had considered whether [the] limitation . . . is inconsistent with [the
DOT definition], thereby requiring the ALJ to elicit an explanation from the
VE. . . . Accordingly, under the “totality of the circumstances” the
administrative record was arguably defensible and the government’s position
was therefore substantially justified as regards this issue.
Id. at *4-5.
III. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Attorney’s Fees (ECF No. 30) is
DENIED.
IT IS SO ORDERED.

United States District Court Judge
Columbia, South Carolina
January 13, 2017

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