United States District Court, D. South Carolina, Beaufort Division
C. NORTON UNITED STATES DISTRICT JUDGE
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.
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.
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.
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).
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
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.
Magistrate Judge's R&R
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 ...