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Williams v. Colvin

United States District Court, D. South Carolina

January 13, 2017

Jamie Williams, a/k/a James L. Williams, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.

          ORDER AND OPINION

         This matter is before the court on Plaintiff Jamie Williams' (“Plaintiff”) Motion for Attorney's Fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (ECF No. 30.) The Commissioner opposes the motion on the ground that her position in this case was substantially justified. (ECF No. 31.) For the reasons that follow, the court DENIES the Motion for Attorney's Fees (ECF No. 30).

         I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

         In April 2010, Plaintiff filed an application for Disability Insurance Benefits (“DIB”) due to severe impairments of bilateral L4-5 foraminal stenosis and mild bilateral facet arthropathy, bilateral knee replacement, severe low back pain with severe pain radiating down the left leg. (ECF No. 17-5 at 2; ECF No. 17-6 at 62.) Plaintiff's application was denied initially and upon reconsideration. (ECF No. 17-4 at 2-5, 7-13.) 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. (ECF No. 17-2 at 23, 30.) Relevant here, the ALJ found that Plaintiff's “use of upper extremities to operate push or pull controls is limited as follows: occasionally bilaterally.” (Id. at 26). Relying on the testimony of a vocational expert (“VE”), the ALJ also determined that Plaintiff had the residual functional capacity (“RFC”) to perform the job of a touch-up screener or printed circuit board assembler (the “job”). (Id. at 29.) Because of Plaintiff's RFC to perform the job, the ALJ determined that Plaintiff was not disabled.[1] (Id. at 30.) Thereafter, the Appeals Council denied Plaintiff's request for review. (Id. at 2-8.)

         In June 2013, Plaintiff commenced the instant action in federal district court to obtain judicial review of the Commissioner's final decision denying Plaintiff's claim for DIB. (ECF No. 1.) Among other things, Plaintiff argued that, under the definitions provided by the Selected Characteristics of Occupations (“SCO”), published by the Department of Labor, the job required frequent handling, which, he argued, conflicted with the ALJ's finding that Plaintiff was limited to only occasionally bilaterally operating push or pull controls with the upper extremities. (See ECF No. 19 at 21-23 (citing Dep't of Labor, Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles 201 (1993)).) In Plaintiff's view, the VE necessarily incorporated the SCO definition of the job when he testified that Plaintiff could perform the job. According to Social Security Administration regulations:

When there is an apparent unresolved conflict between VE or [vocational specialist (“VS”)] evidence and the [Dictionary of Occupational Titles (“DOT”)], the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE or VS evidence to support a determination or decision about whether the claimant is disabled. . . . The adjudicator must resolve the conflict by determining if the explanation given by the VE or VS is reasonable and provides a basis for relying on the VE or VS testimony rather than on the DOT information.

         Social Security Ruling 00-4p.[2] The Magistrate Judge rejected Plaintiff's argument, finding that “there is no conflict between the SCO and the VE's testimony causing the ALJ to have needed to elicit an explanation, and the ALJ's determination regarding Plaintiff's ability to perform the job . . . is supported by substantial evidence.” (ECF No. 23 at 24.) Accordingly, on September 3, 2014, the Magistrate Judge issued her recommendation that the Commissioner's final decision denying Plaintiff's claim for DIB be affirmed. (Id.) Plaintiff timely filed objections (ECF No. 25).

         Reviewing the Report and Recommendation, the court could not reach the same conclusion as the Magistrate Judge that no conflict existed. In the court's estimation, it was “not entirely clear” whether “frequent handling” would include tasks that go beyond “occasionally pushing or pulling, ” in part, because the DOT and the SCO do not define pushing or pulling. (ECF No. 28 at 5-6.) Creating more uncertainty as to whether a conflict existed, the court could not discern why the ALJ had included the limitation of occasional pushing and pulling, explaining that

[i]f the restriction was made due to a strength limitation, [the Commissioner] has the stronger argument. However, if the restriction was based on other rationale, Plaintiff's argument potentially has merit. Without a clear explanation of the ALJ's reasoning behind the restriction, the distinction between these terms in this scenario, and the potential ability of Plaintiff to perform this task, is unclear.
. . . . [P]ush and pull limitations do not necessarily equate to limitations in reaching, handling, or fingering, however, . . . such a limitation may be appropriate in some circumstances. As such, further explanation from the VE of the requirements of [the job] in relation to Plaintiff's limitations is necessary for the ALJ to properly explain and clarify his decision.

(Id. at 6.) Accordingly the court rejected in part the Report and Recommendation, reversed the Commissioner's decision, and remanded the case to the Commissioner “to get clarity from an ALJ regarding his findings.” (Id. at 7.)

         On June 25, 2015, Plaintiff filed the instant Motion for Attorney's Fees under the EAJA, contending that the Commissioner's position was not substantially justified. (ECF No. 30; see ECF No. 30-6 at 8-9.) In response, the Commissioner argues that her 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 her decision, and observing that the ALJ's limitation was not clearly in conflict with the VE's testimony and may be found not to be so on remand. (See ECF No. 31.) In reply, Plaintiff contends that the conflict between the ALJ's limitation and the VE's testimony was apparent and that the Commissioner's arguments ignore Social Security Ruling 00-4p and well-settled case law in this jurisdiction and, thus, cannot be substantially justified (ECF No. 32 at 1-3). He also emphasizes that “[t]he question is whether or not the Commissioner's position regarding the ALJ's failure to resolve a potential conflict was substantially justified.” (Id. at 4.)

         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 ...


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