Sheldon v. Commissioner of Social Security Administration

Filing 21

ORDER granting 17 Motion for Attorney Fees Signed by Honorable David C Norton on 5/16/2014.(cahe, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
DENNIS FREDERICK SHELDON,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 9:13-cv-0151-DCN

ORDER

This matter is before the court on a motion for attorney’s fees filed by claimant
Dennis Frederick Sheldon (“Sheldon”) pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d)(1)(A). Sheldon requests $7,098.41 in attorney’s fees on
the ground that he is a prevailing party under the EAJA. The Commissioner argues
against the awarding of such fees, 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), Sheldon is considered
the “prevailing party” under the EAJA. See Shalala v. Schaefer, 509 U.S. 292, 302
(1993).
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.
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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). 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 Commissioner initially defended the ALJ’s decision by filing a
memorandum in support thereof. The magistrate judge recommended that the ALJ had
failed to adequately discuss the weight given to two VA ratings in violation of Bird v.
Comm’r of Soc. Sec. Admin., 699 F.3d 337 (4th Cir. 2012),1 and that the case should
therefore be remanded. The Commissioner indicated that she would not file objections to
the magistrate judge’s report and recommendation. On April 7, 2014, this court adopted
the report and recommendation and remanded the case for further administrative
proceedings.
The Commissioner contends that her initial defense of the ALJ’s decision was
substantially justified, even in light of Bird. In Bird, the Fourth Circuit held that
in making a disability determination, the SSA must give substantial weight
to a VA disability rating. However, because the SSA employs its own
standards for evaluating a claimant’s alleged disability, and because the
effective date of coverage for a claimant’s disability under the two
programs likely will vary, an ALJ may give less weight to a VA disability

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Bird was decided after the ALJ issued his decision but before the Appeals
Council denied review.
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rating when the record before the ALJ clearly demonstrates that such a
deviation is appropriate.
699 F.3d at 343.
In her memorandum in support of the ALJ’s decision, the Commissioner
acknowledged that the ALJ was required to consider the VA ratings and that, after Bird,
the default weight assigned to any VA rating is “substantial weight.” Comm’r’s Mem.
27. However, the Commissioner argued that the ALJ complied with Bird by discussing
the VA disability determinations and setting out the reasons that caused him to give them
less than substantial weight. Id. at 27-28. The ALJ’s opinion stated:
In a Veteran’s Administration Rating Decision of September 2008, a
finding of incompetency was proposed. I have considered this opinion;
however, I give it little weight as there is no basis articulated for the
opinion and the evidence of record does not support it.
In a Veteran’s Administration Rating Decision of November 2009, the
claimant was found to have a service-connected disability, 70% for
bipolar, 20% for his back and 20% for radiculopathy. I have considered
this opinion but note that the rules followed by the VA regarding disability
are different from the rules of the Social Security Administration.
Therefore, I am not bound by their findings. Moreover, the decision does
not explain how the claimant would be limited in performing work
activity.
Tr. 27-28.
The court is not persuaded by the Commissioner’s argument. First, because Bird
had not yet been decided, the ALJ presumably did not approach the VA ratings from the
proposition that such ratings must generally be given “substantial weight.” The Fourth
Circuit acknowledged in Bird that it “ha[d] not previously addressed the precise weight
that the SSA must afford to a VA disability rating,” 699 F.3d at 343, and nothing in the
ALJ’s decision indicates that he considered substantial weight to be the default weight
given to VA ratings. Moreover, the ALJ’s cursory discussion of the weight given to the

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VA ratings fails to “clearly demonstrate[]” that a deviation from the substantial weight
default was appropriate. See id.
Quite simply, through no fault of his own, the ALJ failed to anticipate and apply a
rule of law which had not yet been articulated by the Fourth Circuit. Therefore, 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. Therefore, the court GRANTS Sheldon’s motion and
awards fees in the amount of $7,098.41.2
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
May 16, 2014
Charleston, South Carolina

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Sheldon seeks an award of $7,098.41 based on 38.1 attorney work hours at a
rate of $186.31 per hour. See Pl.’s Mot. Ex. A. This rate is based on the statutory rate
plus a cost of living increase pursuant to the Consumer Price Index. Id. The Fourth
Circuit has noted that the CPI is an appropriate tool to utilize in calculating a cost of
living rate adjustment to a statutory fee. See generally Sullivan v. Sullivan, 958 F.2d 574
(4th Cir. 1992). Defendant does not object to the amount requested by plaintiff.
Accordingly, the court finds the amount requested is reasonable. Although Sheldon has
executed an affidavit that assigns her fee award to her attorney, the EAJA requires
attorney’s fees to be awarded directly to the litigant. Astrue v. Ratliff, 130 S. Ct. 2521,
2527 (2010) (“EAJA fees are payable to litigants”); Stephens v. Astrue, 565 F.3d 131,
139 (4th Cir. 2009) (“[T]he plain language of the EAJA provides that attorney's fees are
payable to the prevailing party-in this case the Social Security claimants-and not the
attorney.”). This court has held that EAJA fees are payable to a plaintiff even where she
has attached an affidavit assigning her rights in the fee award to counsel. See, e.g.,
Whites v. Astrue, No. 8:10-cv-3302, 2012 WL 5867149, at *2 n.1 (D.S.C. Nov. 19,
2012). The court therefore grants attorney’s fees to Sheldon, not his attorney, in the
amount of $7,098.41.
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