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Spissinger v. Colvin

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

December 29, 2016

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.



         This matter is before the court on a motion for attorney's fees filed by claimant William Spissinger (“Spissinger”) pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A). Brown requests $8, 249.49 in attorney's fees and $350.00 for costs and expenses on the ground that he is a prevailing party under the EAJA. ECF No. 23 at 2-3. Carolyn W. Colvin, Acting Commissioner of the Social Security Administration (the “Commissioner”) argues that Spissinger is not entitled to such fees and costs because the Commissioner's position in this litigation was substantially justified.

         I. BACKGROUND

         Spissinger filed an application for disability insurance benefits (“DIB”) on January 19, 2010, alleging disability beginning on November 2, 2009. The Social Security Administration denied Spissinger's claim initially and on reconsideration. Spissinger requested a hearing before an administrative law judge (“ALJ”), and a hearing was held on May 19, 2011. The ALJ issued its decision on June 27, 2011, finding that Spissinger was not disabled under the Social Security Act. The Appeals Council declined to review the ALJ's decision, and Spissinger filed the instant action on December 6, 2012. The magistrate judge issued an R&R on July 9, 2014, recommending that this court affirm the ALJ's decision. Spissinger filed objections to the R&R on July 16, 2014, arguing that the magistrate judge erred in: (1) finding that the ALJ properly gave little weight to his treating physician; (2) finding that the ALJ properly determined that his mental impairments were non-severe; (3) finding that the ALJ properly evaluated his credibility; (4) determining that remand is not required to give further consideration to his obesity; and (5) finding that the ALJ properly relied on vocational expert testimony. The Commissioner responded to Spissinger's objections on July 28, 2014.

         On September 29, 2014, the court issued an order rejecting the magistrate judge's recommendation, reversing the Commissioner's decision, and remanding for further administrative proceedings (the “Order”). ECF No. 21. The Order only addressed Spissinger's credibility argument, finding that the ALJ improperly failed to account for Spissinger's work history in evaluating Spissinger's testimony regarding the “intensity, persistence and limited effects of [his] symptoms.” Order at 5 (alteration in original) (quoting Tr. 30). The court did not address any of Spissinger's other objections, but did state that “the ALJ should consider [such objections]” on remand. Id. at 6.


         A. Prevailing Party

         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). To qualify as a “prevailing party, ” a party “must succeed on the merits of a claim.” S-1 By & Through P-1 v. State Bd. of Educ. of N.C. , 6 F.3d 160, 170 (4th Cir. 1993) (Wilkinson, J., dissenting), adopted as majority opinion, 21 F.3d 49 (4th Cir. 1994) (en banc). “In other words, success must be something buttressed by a court's authority or required by a rule of law. The lawsuit must materially alter the ‘legal relationship' between plaintiffs and defendants.” Id. Because this court remanded Spissinger's case to the ALJ pursuant to 42 U.S.C. § 405(g), Spissinger is considered the “prevailing party” under the EAJA. See Shalala v. Schaefer, 509 U.S. 292, 302 (1993).

         B. Substantially Justified

         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. 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). “The government's non-acquiescence in the law of the circuit entitles the claimant to recover attorney's fees.” Crawford v. Sullivan, 935 F.2d 655, 658 (4th Cir. 1991); 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.”). There is no presumption that losing the case means that the government's position was not substantially justified. Crawford, 935 F.2d at 656.

         Spissinger argues that the Commissioner's position in this action was unreasonable because 20 C.F.R. § 404.1529, SSR 96-7p, and prior case law all required the Commissioner to consider Spissinger's strong work history in evaluating his credibility. Pl.'s Mot. 3. However, a more precise reading of the Order reveals that the court based its decision on the ALJ's failure to “mention” Spissinger's prior work record, which the court deemed to be a failure to “consider” such evidence under 20 C.F.R. § 404.1529 and SSR 96-7p. Order at 5-6. Neither 20 C.F.R. § 404.1529 nor SSR 96-7p explicitly require the ALJ to “discuss” or “mention” a claimant's work history, but state only that such evidence must be “considered.” See 20 C.F.R. § 404.1529 (“We will consider all of the evidence presented, including information about your prior work record . . . .”); SSR 96-7p (stating that an “[a]ssessment of the credibility of an individual's statements about pain or other symptoms . . . must be based on a consideration of all of the evidence in the case record, ” including “prior work record and efforts to work”). Thus, the court's ruling in this case was based on its interpretation of the word “consider” to require some explicit discussion of a claimant's work history.

         At the time of the court's Order, a number of courts-including one court in this district-had taken a different position on this issue, finding that an ALJ is not required to explicitly discuss a claimant's work history in evaluating the claimant's credibility. See Sondergeld v. Colvin, 2013 WL 3465294, at *6 (W.D. N.C. July 10, 2013) (“[T]he ALJ's failure to specifically discuss [p]laintiff's good work history does not undermine his credibility assessment.”); Ramey v. Astrue, No. 4:11-cv-2762, 2012 WL 6093797, at *5 (D.S.C. Dec. 7, 2012) (rejecting plaintiff's argument that remand was required because ALJ failed to consider “long and exemplary work history” in evaluating plaintiff's testimony regarding her “pain and other subjective symptoms”); Laws v. Astrue, 2009 WL 3270770, at *8 (E.D. Va. Oct. 8, 2009) (affirming ALJ's decision where ALJ failed to discuss the plaintiff's work record in connection with credibility determination). The Order even cited a prior decision from this court recognizing the lack of consensus on this issue. See Osgood v. Astrue, No. 2:08-cv-03386-DCN, 2010 WL 737839, at *9 (D.S.C. Mar. 2, 2010) (recognizing that “[s]ome district courts have upheld the ALJ's credibility determination where the ALJ failed to note a plaintiff's work history”). Thus, at the time of this court's decision, a number of other courts in this circuit had determined that an ALJ need not explicitly discuss a claimant's positive work history in evaluating the claimant's credibility.

         It is also significant that the magistrate judge in this case was convinced that the ALJ's failure to discuss Spissinger's work history did not require remand and cited authority supporting that position. See ECF No. 15, R&R at 20 n.8 (“No reversible error is shown by the ALJ's failure to include consideration of Plaintiff's long work history in his credibility analysis. While a good work history is certainly one factor that an ALJ may consider in weighing credibility, it is not dispositive.” (citing Sondergeld, 2013 WL 3465294, at *6)). Although the magistrate judge's agreement with the Commissioner's position is not dispositive, it provides additional evidence that the Commissioner's position was substantially justified. See McKoy v. Colvin, 2013 WL 6780585, at *3 (D.S.C. Dec. 19, 2013) (“While not determinative, the fact that the Magistrate Judge recommended that the Commissioner's decision be affirmed suggests that the Commissioner's position was substantially justified.”). Under these circumstances, the court concludes that the Commissioner's position was at least reasonable, and thus, “substantially justified” under 28 U.S.C. § 2412(d)(1)(A).

         Spissinger also argues that “the court [] found at least some merit to [p]laintiff's other arguments as it directed the ALJ to consider them following remand, ” and contends that these issues must also be considered in the substantial justification context. Pl.'s Mot. 3; Pl.'s Reply 2. As an initial matter, the court did not make any findings with respect to Spissinger's other objections to the R&R. Thus, Spissinger is incorrect in asserting that the court “did not agree with the [m]agistrate [j]udge's R&R on any of the other rulings in the case.” Pl.'s Reply 2. The Order simply stated that “the ALJ should consider Spissinger's other allegations of error.” Order at 6. This language was included to give the ALJ an opportunity to resolve such issues on remand without the expense of additional judicial resources. It was most certainly not a finding of error, as evidenced by the court's use of the phrase “allegations of error.” Id. Thus, the court has not made any findings whatsoever with respect to Spissinger's arguments that the magistrate judge erred in: (1) finding that the ALJ properly ...

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