Holcomb v. Commissioner Social Security Administration
ORDER AND OPINION granting in part and denying in part 20 Motion for Attorney Fees. Signed by Honorable J Michelle Childs on 10/17/2016.(abuc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Gordon Simmons Holcomb,
Commissioner of Social Security
Civil Action No. 8:13-cv-02066-JMC
ORDER AND OPINION
This matter is before the court on Plaintiff Gordon Simmons Holcomb’s (“Plaintiff”)
Motion for Fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (ECF No.
20.) The Commissioner opposes the motion on the ground that her position in this case was
substantially justified. (ECF No. 21.) For the reasons that follow, the court GRANTS the motion
IN PART and DENIES it IN PART.
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
In January 2011, Plaintiff filed applications for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) due to knee pain, back pain, and a broken right arm. (ECF
No. 13 at 2, 6; see also ECF No. 7-6 at 7.) Plaintiff’s application was denied initially and upon
reconsideration. (ECF No. 7-4 at 3, 13, 16.) 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 (“SSA”) because he had “the residual functional capacity to perform light
work” and such jobs “exist in significant numbers in the national economy that the claimant can
perform.” (ECF No. 7-2 at 31, 36.) Relevant here, the ALJ accorded little weight to the opinion of
Plaintiff’s treating physician. (See id. at 32–35.) Thereafter, the Appeals Council denied Plaintiff’s
request for review.
In July 2013, Plaintiff commenced this instant action in federal district court to obtain
judicial review of the Commissioner’s final decision denying Plaintiff’s claim for DIB and SSI.
(ECF No. 1.) On February 2, 2015, the Magistrate Judge issued her recommendation that the
Commissioner’s final decision denying Plaintiff’s claim for DIB and SSI be affirmed. (ECF No.
13.) After Plaintiff timely filed objections (ECF No. 15), the court rejected in part the Report and
Recommendation, reversed the Commissioner’s decision, and remanded the case to the
Commissioner (ECF No. 18.) The court did not agree with the Magistrate Judge that the ALJ
evaluated Plaintiff’s treating physician’s opinions in accordance with 20 C.F.R. § 404.1527. (Id.
at 7.) More specifically, the court explained that
[t]he court cannot in fact determine whether the ALJ considered all of the
factors in 20 C.F.R. § 404.1527(c) as he is required to do, because the ALJ did
not discuss those factors explicitly. Without an express discussion of the
§ 404.1527(c) factors, the court cannot ascertain if substantial evidence
supported the ALJ’s determination that [the physician’s opinion] was not
entitled to controlling weight as [he was] Plaintiff’s treating physician.
(Id. (footnotes omitted).)
On May 29, 2015, Plaintiff filed the instant motion for attorneys’ fees under the EAJA,
contending that the Commissioner’s position was not substantially justified. (ECF No. 20; see ECF
No. 20-1 at 2-3.) In response, the Commissioner argues that its 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 its decision, and referencing
case law for the proposition that an ALJ need not expressly weigh each of the § 404.1527(c)
factors. (ECF No. 21 at 2-3, 5-7.) In reply, Plaintiff contends that the Magistrate Judge’s
recommendation to affirm should not be dispositive and that the ALJ was required to weigh noncontrolling medical opinions using all the § 404.1527(c) factors. (ECF No. 22 at 1-2.)
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
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.”) Nevertheless, for the reasons discussed below, the court determines that this favorable
factor is not enough for the Commissioner to meet her burden. 1
Although, as the Commissioner points out, there is indication that the ALJ considered
some of the § 404.1527(c) factors, the court, in its order, stated that it could not determine whether
the ALJ considered all of the factors. The ALJ’s failure to indicate whether he considered all the
factors is fatal for the Commissioner’s arguments. As another court in the Fourth Circuit, after
canvassing the case law, has explained:
Nothing in [§ 404.1527(c)] requires an express discussion of each
factor. Although the Fourth Circuit has not yet addressed whether an ALJ must
explicitly analyze every factor, several district courts within the Fourth Circuit
have not found such a requirement. However, at least one district court within
the Fourth Circuit has required explicit discussion of each factor.
Thus, it is not entirely clear whether the ALJ must explicitly “check
off” every [§ 404.1527(c)] factor. What is clear under Fourth Circuit law is that
the ALJ must at least indicate that he or she was aware of and considered all
of the factors.
Baxter v. Astrue, No. SKG-10-3048, 2012 WL 32567, at *6-7 (D. Md. Jan. 4, 2012) (internal
citations and footnote omitted); see also Odom v. Comm’r of Soc. Sec. Admin., No. 2:10-cv-02757DCN, 2013 WL 1404821, at *2 (D.S.C. Apr. 5, 2013).
The court also agrees with the Commissioner that the mere fact that a court reverses the
Commissioner’s decision on the ground that there was not substantial evidence to support the
ALJ’s conclusions would not, alone, show that the Commissioner’s position was not substantially
justified. Evans v. Sullivan, 928 F.2d 109, 110 (4th Cir. 1991); Goode v. Astrue, 775 F. Supp. 2d
852, 856 (D.S.C. 2010). Here, however, the court reversed the Commissioner not because the
ALJ’s decision was not supported by substantial evidence but because it could not “determine
whether the ALJ considered all of the factors in 20 C.F.R. § 404.1527(c) as he is required to do”
and, for this reason, the court could not determine whether the decision was supported by
substantial evidence. (ECF No. 18 at 7.)
“The government’s non-acquiescence in the law of the circuit entitles the claimant to
recover 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.”). Here, because, as the court previously determined, the ALJ’s decision
did not indicate whether he considered all of the § 404.1527(c) factors—a requirement in the
Fourth Circuit—the Commissioner cannot carry its burden to prove that its position was
For the foregoing reasons, Plaintiff’s Motion for Fees (ECF No. 20) is GRANTED IN
PART to the extent that the court determines that Plaintiff is entitled to fees under the EAJA in
the amount of $5,308.13 and costs in the amount of $400.00. The motion is DENIED IN PART
to the extent it requests the court order payment directly to Plaintiff’s counsel. Pursuant to Astrue
v. Ratliff, 560 U.S. 586 (2010), and decisions in this court, 2 such fees are to be addressed and sent
Counsel has submitted an assignment, by Plaintiff, of the fees in this case (ECF No. 20-4) and,
therefore, requests any award be made payable to counsel. In Astrue, the Supreme Court held that
the EAJA requires attorneys’ fees to be awarded directly to the litigant. 560 U.S. at 598 (holding
that the plain text of the EAJA requires that attorneys’ fees be awarded to the litigant, thus
subjecting EAJA fees to offset of any pre-existing federal debts); see also Stephens v. Astrue, 565
F.3d 131, 139 (4th Cir. 2009) (same). Neither Ratliff nor Stephens addresses whether claimants
may assign EAJA fees to their attorneys via contract. This district, however, has fairly consistently
found such assignments ineffective to require the court to make payment directly to counsel. See,
e.g., Williams v. Astrue, No. 0:10-cv-00004, 2012 WL 6615130, at *4 (D.S.C. Dec. 19, 2012). At
least one circuit court of appeals has additionally expressed concern that such contracts would
constitute an “endrun” around the plain text of the EAJA, as interpreted in Ratliff. See Brown v.
Astrue, 271 F. App’x 741, 743 (10th Cir. 2008) (stating, in dicta, that claimant’s “assignment of
his right in the fees award to counsel does not overcome the clear EAJA mandate that the award
is to him as the prevailing party”). Courts are more willing to order payment to counsel if the
Commissioner has accepted the assignment as valid, c.f. Mathews-Sheets v. Astrue, 653 F.3d 560,
565-66 (7th Cir. 2011) (noting that Ratliff offers equivocating suggestions on the issue and stating
in dicta, that, assuming assignments may be enforced, “the only ground for the district court's
insisting on making the award to the plaintiff is that the plaintiff has debts that may be prior to
directly to Plaintiff.
IT IS SO ORDERED.
United States District Court Judge
Columbia, South Carolina
October 17, 2016
what she owes her lawyer.”); however, the Commissioner’s practice in this regard has not been
uniform. Here, the Commissioner has not accepted the assignment as valid.
Because the Commissioner has not accepted the assignment, and in keeping with the
prudent decisions of this district, the court declines to treat such an assignment as altering the
court’s obligation to make the EAJA payment to Plaintiff directly. As the Court in Ratliff
emphasized, the EAJA controls what the losing defendant must pay, “not what the prevailing
plaintiff must pay his lawyer.” Ratliff, 560 U.S. at 598.
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