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Lollis v. Colvin

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

March 14, 2018

JACKIE LOLLIS, Plaintiff,
v.
CAROLYN W. COLVIN, 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 for attorney's fees filed by claimant Jackie Lollis (“Lollis”) pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A). Lollis requests $6, 661.12 in attorney's fees as a prevailing party under the EAJA. ECF No. 44 at 1. Nancy C. Berryhill, Acting Commissioner of the Social Security Administration (the “Commissioner”), argues that Lollis 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 not substantially justified and grants Lollis's attorney fee petition.

         I. BACKGROUND

         Lollis filed an application for disability insurance benefits (“DIB”) on June 16, 2008, alleging disability beginning on April 12, 2008. The Social Security Administration (“SSA”) denied Lollis's claim initially and on reconsideration. Lollis requested a hearing before an administrative law judge (“ALJ”), and a hearing was held on April 23, 2010. The ALJ issued a decision on July 28, 2010, finding that Lollis was not disabled under the Social Security Act. The Appeals Council declined to review the ALJ's decision, and Lollis filed the action for judicial review on July 5, 2012. On January 14, 2013, Lollis filed a brief asking that the court remand her case for further proceedings. The Commissioner responded to Lollis's brief on February 15, 2013. On October 23, 2013, the magistrate judge issued a report and recommendation (“R&R”), recommending that the ALJ's decision be affirmed and Lollis's motion to remand be denied. Lollis objected to the R&R on November 12, 2013, and the Commissioner filed a response to Lollis's objections on November 21, 2013. On March 6, 2014, this court reversed the Commissioner's decision and remanded the case for further administrative proceedings. The court found that the ALJ erred by failing to give appropriate weight to the opinion of Lollis's treating physician, Dr. Charles F. Wadee (“Dr. Wadee”). Due to this deficiency, the court concluded that substantial evidence did not support the ALJ's decision.

         On April 28, 2014 Lollis filed a motion for attorney's fees pursuant to the EAJA, 28 U.S.C. § 2412(d). The Commissioner opposed the motion on May 15, 2014.

         II. STANDARD

         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 reversed and remanded Locke's case to the Commissioner for administrative action pursuant to 42 U.S.C. § 405(g), Locke 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, 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.

         III. DISCUSSION

         The government makes two arguments in opposition to Lollis's 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 her decision, and (2) that the Commissioner's position in affording little weight to Dr. Wadee's opinion had a reasonable basis in fact and law. ECF No. 45 at 4. The court addresses each issue in turn.

         1. Magistrate Judge's R&R

         First, the Commissioner argues that the ALJ's discounting of Dr. Wadee's opinion was substantially justified because the Magistrate Judge recommended affirming the ALJ. ECF No. 33 at 6. 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, 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 the Commissioner's position was substantially justified). However, as ...


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