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Kirby v. Berryhill

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

November 6, 2017

ANGELA KIRBY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, [1]Defendant.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE

         This matter is before the court on a motion fr attorney's fees fled by claimant Angela Kirby ("Kirby") pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(A). Kirby requests $5, 788.29 in attorney's fees on the ground that she is a prevailing party under the EAJA. ECF No. 30 at 2. Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, (the "Commissioner") argues that Kirby 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 Kirby's motion for attorney's fees.

         I. BACKGROUND

         Kirby filed application for disability insurance benefits ("DIB") and supplemental security income ("SSI") on February 14, 2006, alleging disability beginning on September 1, 2004. The Social Security Administration denied Kirby's claim initially and on reconsideration. Kirby requested a hearing before an administrative law judge ("ALJ"), and a hearing was held on September 4, 2008. The ALJ issued her decision on November 19, 2008, finding that Kirby was not disabled under the Social Security Act. This decision became the final decision of the Commissioner when the Appeals Council denied further review on June 7, 2010. Kirby sought judicial review on July 30, 2010. By order of the court dated February 27, 2012, the decision of the Commissioner was reversed and remanded for further proceedings.[2]

         Pursuant to the court's remand concerning Kirby's first"application for SSI and DIB, a hearing was held on September 25, 2012. In a decision issued on April 3, 2013, the ALJ again determined that Kirby was not disabled. The Appeals Council declined to review the ALJ's decision, and Kirby filed the instant action on November 19, 2013. The magistrate judge issued a Report and Recommendation ("R&R") on January 12, 2015, recommending that the Commissioner's decision be affirmed. Kirby objected to the R&R on January 28, 2015, and the Commissioner filed'a brief reply to Kirby's objections on February 17, 2015. Upon review, this court rejected the magistrate judge's R&R on March 10, 2015, reversed the Commissioner's decision, and remanded the case for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).[3]

         II. DISCUSSION

         A. Prevailing Party

         Under 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-1 v. State Bd. of Educ. of N.C. . 6 F.3d 160, 170 (4th Cir. 1993) (Wilkinson, J., dissenting), adopted as majority opinion, 21F.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 Kirby's case to the Commissioner for administrative action pursuant to 42 U.S.C. § 405(g), Kirby is considered the "prevailing party" under the EAJA.[4] 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). "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 656.

         1.Treating Physician Testimony

         In assessing Kirby's ability to function in a work environment, the ALJ afforded "great weight" to the opinions of non-examining sources while affording little to no weight to*the opinions of Kirby's treating sources.[5] Tr. 541-543. Notably, when these state agency consultants rendered their opinions, they did not have the benefit of subsequent medical records and opinions from treating and examining sources.

         In the instant motion, Kirby argues that the Commissioner's position in this action was unreasonable because the ALJ improperly rejected the opinions of Dr. Valite, [6] Kirby's long-term treating psychiatrist, "in favor of opinions from non-examining doctors who never met Kirby and who did not see the entire record[.]" Br. in Supp. of Mot. for Attorney's Fees 7. Kirby contends that the non-examining doctors, whose opinions were given great weight, were never aware of the conclusions of the treating doctors who had examined Kirby. Id. In opposition, the government contends that it was substantially justified because the magistrate judge, acting as a reasonable person, recommended affirming the ALJ's decision. Def.'s Resp. to Mot. for Attorney's Fees 2.

         As a threshold matter, the 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 ...


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