United States District Court, D. South Carolina, Anderson/Greenwood Division
C. NORTON UNITED STATES DISTRICT JUDGE.
matter is before the court on a motion for attorney's
fees filed by claimant Luquines Lizell Cromedy
("Cromedy") pursuant to the Equal Access to Justice
Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(A).
Cromedy requests $8, 690.45 in attorney's fees on the
ground that she is a prevailing party under the EAJA. ECF No.
32 at 1. Nancy A. Berryhill, Acting Commissioner of the
Social Security Administration, (the
"Commissioner") argues that Cromedy is not entitled
to such fees and costs because the Commissioner's
position in this litigation was substantially justified. The
court finds that the Commissioner's position was
substantially justified and denies Cromedy's motion for
filed an application for disability insurance benefits
("DIB") and supplemental security income
("SSI") on May 14, 2009, alleging disability
beginning on October 1, 2008. The Social Security
Administration denied Cromedy's claim initially and on
reconsideration. Cromedy requested a hearing before an
administrative law judge ("ALJ"), and a hearing was
held on December 13, 2010. The ALJ issued his decision on
December 30, 2010, finding that Cromedy was not disabled
under the Social Security Act. The Appeals Council declined
to review the ALJ's decision, and Cromedy filed the
instant action on August 31, 2012. The magistrate judge
issued a Report and Recommendation ("R&R") on
January 31, 2014, recommending that the Commissioner's
decision be affirmed. Cromedy objected to the R&R on
February 13, 2014, and the Commissioner filed a brief reply
to Cromedy's objections on March 3, 2014. Upon review,
this court rejected the magistrate judge's R&R on
March 17, 2014, reversed the Commissioner's decision, and
remanded the case for further proceedings.
the EAJA, a court must 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-l 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 reversed and remanded Cromedy's
case to the Commissioner for administrative action pursuant
to 42 U.S.C. § 405(g), Cromedy is considered the
"prevailing party" under the EAJA. See Shalala
v. Schaefer, 509 U.S. 292, 302 (1993).
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).
"The government's non-acquiescence in the law of the
circuit entitles the claimant to recover attorney's
fees." Crawford, 935 F.2d at 658; 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
government makes two arguments in opposition to Cromedy's
fee motion: (1) that the government's position was
reasonable as evidenced, at least in part, by the fact that
the magistrate judge found in the Commissioner's favor in
all respects and recommended affirming the Commissioner's
decision; and (2) that Cromedy could not have met a Listing
and therefore obtained a remand on mere technicalities.
Magistrate Judge's R&R
the Commissioner supports her contention that she was
substantially justified based "at least in part, by the
fact that Magistrate Judge Austin found in the
Commissioner's favor on the Listings and credibility
issues, and recommended affirming the Commissioner's
decision." ECF No. 33 at 4 (citation omitted). In
opposition, Cromedy argues that the Commissioner's
objection to awarding attorney's fees based on a
favorable R&R is improper. ECF No. 34 at 2.
court is unaware of any precedent that a favorable R&R in
and of itself is sufficient to satisfy the "substantial
justification" standard for an EAJA fee motion.
Certainly, courts have found that a favorable R&R may
weigh in favor of finding that the government was
substantially justified in taking a certain position. See
McKoy v. Colvin, C/A No. 4:12-1663-CMC-TER, 2013 WL
6780585, at *3 (D.S.C. Dec. 19, 2013) (finding that an
R&R which affirmed the Commissioner's position was
one factor-but not the determinative factor-to suggest that
the Commissioner's position was substantially justified).
However, the magistrate judge's recommendation that the
court affirm the Commissioner's decision is not
determinative of whether the Commissioner's position was
substantially justified. Myers v. Barnhart, 518
F.Supp.2d 653, 656 (D.S.C. 2006) (citation omitted) (finding
"the fact that this court remanded the case to the
Commissioner does not mean that Plaintiff is entitled to
attorney's fees"). Therefore, in the instant action,
the magistrate judge's recommendation to affirm the
Commissioner's decision to deny benefits is simply one
factor that the court considers.