Beverlin v. Commissioner of Social Security
Filing
22
MEMORANDUM OPINION AND ORDER ADOPTING AND AFFIRMING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND GRANTING AS FRAMED PLAINTIFF'S MOTION FOR AWARD OF ATTORNEY'S FEES: Granting 17 Motion for Attorney Fees; Aopting Report and Recom mendations re 21 Report and Recommendations as to 17 Motion for Attorney Fees filed by Sylvia E. Beverlin. Attorney's Fees in the amount of $3,572.50 awarded to Plaintiff; parties' appeal rights are waived. Signed by Senior Judge Frederick P. Stamp, Jr on 4/6/16. (soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
SYLVIA E. BEVERLIN,
Plaintiff,
v.
Civil Action No. 5:15CV15
(STAMP)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
MEMORANDUM OPINION AND ORDER
ADOPTING AND AFFIRMING MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
AND GRANTING AS FRAMED PLAINTIFF’S
MOTION FOR AWARD OF ATTORNEY’S FEES
I.
Procedural History
This Court previously affirmed and adopted the magistrate
judge’s report and recommendation and remanded this case to the
Social Security Commissioner.
Specifically, this Court affirmed
the magistrate judge’s conclusion that the Administrative Law Judge
(“ALJ”) failed to address relevant evidence by not considering the
opinion of the plaintiff’s treating physician.
The plaintiff then
filed this motion for attorney’s fees under the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412(d), seeking $6,440.63.
Pursuant to Local Rule of Civil Procedure 72.01, this Court
referred a determination on the plaintiff’s motion to United States
Magistrate Judge Michael J. Aloi.
The magistrate judge entered a
report recommending that the plaintiff’s motion be granted with
certain
reductions.
Neither
party
filed
objections
to
the
magistrate judge’s report and recommendation.
For the following
reasons, this Court adopts and affirms the magistrate judge’s
report and recommendation and grants as framed the plaintiff’s
motion for attorney’s fees.
II.
Applicable Law
As there were no objections filed to the magistrate judge’s
report and recommendation, his findings and recommendation will be
upheld unless they are “clearly erroneous or contrary to law.”
U.S.C. § 636(b)(1)(A).
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Additionally, because no party filed
objections to the report and recommendation, the parties waived
their right to appeal from a judgment of this Court based thereon.
Thomas v. Arn, 474 U.S. 140, 148-53 (1985).
III.
A.
Discussion
Entitlement to Attorney’s Fees
Under the EAJA, a plaintiff in litigation against the United
States is entitled to such fees if: (1) the plaintiff is a
“prevailing
party”;
(2)
the
government’s
position
was
not
substantially justified; (3) no special circumstances would make
the award unjust; and (4) the plaintiff timely filed a petition
supported by an itemized statement. Crawford v. Sullivan, 935 F.2d
655, 656 (4th Cir. 1991); 28 U.S.C. § 2412(d)(1)(A). The defendant
does not contest that the plaintiff is a prevailing party, that
there are no special circumstances making an award of attorney’s
fees unjust, or that the plaintiff timely filed her petition.
2
Rather, the defendant argues that its position was substantially
justified.
The government’s position is “substantially justified” if it
is “justified to a degree that could satisfy a reasonable person,”
regardless
of
whether
it
is
a
losing
Underwood, 487 U.S. 552, 565 (1988).
position.
Pierce
v.
The government’s position
must be substantially justified in fact and in law.
Id.
While the
government’s position is not necessarily unjustified “[m]erely
because the [Social Security Commissioner’s] original decision has
been found to be based on an inadequately developed record,” Sigman
v. U.S. Dep’t of Health and Human Servs., No. 91-2566, 961 F.2d 211
(Table), *1 (4th Cir. May 4, 1992) (unpublished per curiam),
administrative agencies must follow the law of the applicable
circuit.
Hyatt v. Heckler, 807 F.2d 376, 379 (4th Cir. 1986).
Magistrate Judge Aloi concluded that the defendant was not
substantially justified in arguing that it was harmless error for
the Administrative Law Judge (“ALJ”) to fail to consider the weight
to give to a medical opinion.
The magistrate judge correctly
concluded that under the law of the United States Court of Appeals
for the Fourth Circuit, an ALJ’s complete failure to consider the
weight of medical opinions is clear error that is not defensible as
harmless error.
See Gordon v. Schweiker, 725 F.2d 231, 235 (4th
Cir. 1984) (noting that courts “cannot determine if findings are
unsupported by substantial evidence unless the Secretary explicitly
3
indicates the weight given to all of the relevant evidence”); 20
C.F.R. § 404.1527(c) (requiring ALJs to evaluate every medical
opinion and to consider certain factors in deciding the weight to
be given to a medical opinion).
Accordingly, this Court finds no
error in the magistrate judge’s conclusion that the government’s
position was not substantially justified.
B.
Reasonableness of Attorney’s Fees
The defendant argues that the plaintiff’s requested attorney’s
fees should be reduced because they are based on a compensation
rate above the EAJA’s allowed rate and because certain recorded
hours are unreasonably high.
The magistrate judge concluded that the plaintiff’s requested
fees were unreasonable.
He concluded that the compensation rate
must be reduced to that allowed under the EAJA, that time billed
for clerical tasks must be removed, that paralegal time spent on
the preparing a treatment summary was excessive and must be reduced
to
ten
hours,
and
that
time
billed
for
preparation
of
the
plaintiff’s petition for attorney’s fees is excessive and must be
reduced to one hour.
Thus, the magistrate judge recommends
awarding the plaintiff $3,572.50 in attorney’s fees.
This Court
finds no error in the magistrate judge’s findings or conclusions.
IV.
Conclusion
The magistrate judge’s report and recommendation (ECF No. 21)
is AFFIRMED and ADOPTED.
Accordingly, the plaintiff’s motion for
4
an award of attorney’s fees (ECF No. 17) is GRANTED AS FRAMED, and
the plaintiff is AWARDED $3,572.50 in attorney’s fees.
Finally, this Court finds that the parties were properly
advised by the magistrate judge that failure to timely object to
the report and recommendation in this action would result in a
waiver of appellate rights.
Because the parties failed to object,
they have waived their right to seek appellate review of this
matter.
See Arn, 474 U.S. at 148-53.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:
April 6, 2016
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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