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Alexander v. Colvin

United States District Court, D. South Carolina, Aiken Division

June 24, 2015

Carole M. Dennison and Timothy Clardy, Petitioner, IN RE: David Alexander, Plaintiff,
Carolyn W. Colvin, Commissioner of Social Security, Defendant.


J. MICHELLE CHILDS, District Judge.


The underlying action was commenced on March 9, 2010, regarding a disability alleged to have begun on May 20, 2008. (ECF No. 26 at 2.) The Acting Commissioner of Social Security ("the Commissioner") initially denied David Alexander's ("Plaintiff") application and denied it again upon reconsideration. ( Id. ) On October 4, 2011, Plaintiff had a hearing before an Administrative Law Judge ("ALJ"). At the hearing, Plaintiff moved to amend his alleged onset date to January 10, 2010. ( Id. ) However, it is unclear whether Plaintiff's motion was granted, as the ALJ appears to have conducted a disability analysis based on an onset date of May 20, 2008. ( Id. ) On November 18, 2011, the ALJ found that Plaintiff was not disabled. ( Id. ) The ALJ determined that Plaintiff had the following severe impairments: obesity, degenerative joint disease in the right knee and bilateral shoulders, degenerative disc disease in back, and anxiety. ( Id. ) The ALJ concluded that Plaintiff had a residual functional capacity ("RFC") to perform light work with the following specifications:

[Plaintiff] can lift or carry 20 pounds occasionally and 10 pounds frequently and he can stand for 2 hours out of an 8-hour workday, walk 2 hours out of an 8-hour workday and sit 6 hours out of an 8-hour workday... [Plaintiff] can never climb a rope, ladder or scaffold, but he can occasionally climb, balance, stoop, kneel, crouch or crawl. [Plaintiff] should avoid concentrated exposure to hazards... [Plaintiff] can frequently reach overhead... [Plaintiff] needs to have only occasional contact with the public.

( Id. )

Plaintiff commenced an action on September 12, 2012, pursuant to the Social Security Act, 42 U.S.C. § 405(g), for judicial review of the final administrative decision of the Commissioner of Social Security denying Plaintiff's claims for Social Security disability insurance benefits (DIB) and Supplemental Security Income (SSI). (ECF No. 1.) United States Magistrate Judge Shiva V. Hodges ("Magistrate Judge") entered a Report and Recommendation ("Report") on November 15, 2013, recommending that the Commissioner's final decision be reversed and remanded to the Commissioner for further administrative action. (ECF No. 16.) The Report concluded that the ALJ did not have substantial evidence to discount Plaintiff's treating physician's opinion regarding Plaintiff's physical limitations ( Id. at 20.) For that reason, the Magistrate Judge also found that the ALJ's RFC determination was not adequately supported. ( Id. at 21.) The Commissioner filed objections to the findings of the Report[1], (ECF No. 19), to which Plaintiff replied. (ECF No. 22.)

By Order and Judgment, entered February 10, 2014, this court adopted the Report, reversed the Commissioner's final decision and remanded the case to the Commissioner for further administrative proceedings. Plaintiff now seeks an award of reasonable attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. §2412 ("EAJA"). (ECF No. 28.)

Plaintiff's position is twofold. First, Plaintiff asserts that he is a "prevailing party" by virtue of his success in obtaining an order of remand from the District Court under sentence four of 42 U.S.C. § 405(g). (ECF No. 28 at 2 ¶ 4) (citing Shalala v. Schaefer, 509 U.S. 292 (1993)). Second, Plaintiff asserts that the Commissioner's position in this case was not "substantially justified." (ECF No. 28 at 2 ¶ 5) (citing Pierce v. Underwood, 487 U.S. 552 (1988), Guthrie v. Schweiker, 718 F.2d 104 (4th Cir. 1983)). As such, Plaintiff requests an award of attorney's fees in the amount of $187.09 per hour.[2] Total court-related time in this case is 36.10 hours. Plaintiff's attorney, Carole M. Dennison, requests an award of $6, 753.95 in attorney's fees plus any reasonable attorney's fees connected with future litigation over this petition pursuant to the EAJA. (ECF No. 28 at 4 ¶ 8.)

The Commissioner objects to Plaintiff's EAJA award request claiming that the Commissioner's position was substantially justified. Alternatively, the Commissioner asserts that should the court find an EAJA award is proper, the court should order that payment be made directly to Plaintiff, not his counsel, under the Treasury Offset Program. (ECF No. 32 at 1.)

For the reasons set forth below, the court GRANTS the motion of Petitioner Carole M. Dennison and Plaintiff David Alexander pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, and AWARDS Plaintiff attorney's fees, as modified, in the amount of $7, 102.25.


The EAJA allows for the prevailing party in litigation against the United States to be awarded attorney's fees and costs upon timely petition, as long as the Commissioner's position was not substantially justified and no special circumstances make such an award unjust. 28 U.S.C. § 2412(d)(1); see Crawford v. Sullivan, 935 F.2d 655, 656 (4th Cir. 1991). The Supreme Court holds that substantially justified means "justified in substance or in the main", in other words, "justified to a degree that could satisfy a reasonable person." Pierce, 108 U.S. at 2550 (1988).

In evaluating a request for attorney's fees and costs pursuant to the EAJA, the Commissioner bears the burden of proving that the agency's position was substantially justified, and to meet that burden, the Commissioner must establish that the agency's position has a reasonable basis in both law and fact. Thompson v. Sullivan, 980 F.2d 280, 281 (4th Cir. 1992). "In other words, favorable facts will not rescue the [Commissioner] from a substantially unjustified position on the law; likewise, an accurate recital of law cannot excuse a substantially unjustified position on the facts." Id.

The standard to be applied in determining whether the Commissioner was substantially justified for purposes of determining whether an award of attorney's fees under the EAJA is warranted is whether there was arguably substantial evidence to support the Commissioner's position, not whether there was some evidence to support the position. Anderson v. Heckler, 756 F.2d 1011, 1013 (4th Cir. 1984). "The government's burden of showing substantial justification is a strong one and is not met merely because the government produces some evidence' in support of its position." Makinson v. Astrue, 586 F.Supp.2d 491, 495 (D.S.C. 2008). Where the Commissioner's position was a result of the failure to perform a certain analysis required by the law and its regulations, the Commissioner's ...

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