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Baker v. Colvin

United States District Court, M.D. North Carolina

March 19, 2015

GARY BAKER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


JAMES A. BEATY, Jr., District Judge.

This matter is before the Court on the Application for Attorney Fees [Doc. #26] of Plaintiff, who contends he is a prevailing party under the Equal Access to Justice Act ("EAJA") based on this Court's Order and Judgment [Doc. #25] filed September 11, 2014. Defendant Acting Commissioner of Social Security Carolyn W. Colvin, ("Commissioner" or "Defendant") filed a Response in Opposition [Doc. #27] to Plaintiff's Application, arguing that (1) Defendant's position was substantially justified in the underlying litigation and thus Plaintiff cannot recover under the EAJA, and (2) in the event this Court does award attorney's fees, Defendant says the amount requested by Plaintiff should be reduced due to Plaintiff's alleged miscalculation of the appropriate hourly rates. As discussed below, this Court will deny Plaintiff's application for attorney's fees but will grant Plaintiff's request for reimbursement of costs against Defendant.


On May 4, 2012, an Administrative Law Judge ("ALJ") denied Plaintiff's application for disability insurance benefits and supplemental security income. The ALJ found that Plaintiff had the following severe impairments: hypertension; obesity; knee impairment; schizophrenia; and bipolar disorder. The ALJ determined that Plaintiff's impairments, alone or in combination, did not meet or equal a listed impairment. The ALJ further determined that Plaintiff had the residual functional capacity ("RFC") to perform medium work with certain limitations. The ALJ concluded that Plaintiff was incapable of performing his past relevant work, but that considering Plaintiff's age, education, work experience, and RFC, there were jobs existing in significant numbers in the national economy that Plaintiff was capable of performing. Accordingly, the ALJ found that Plaintiff was not disabled.

Plaintiff unsuccessfully sought review of the ALJ's decision with the Social Security Appeals council, then proceeded to file a Complaint with this Court pursuant to 42 U.S.C. 405(g). In an Order and Judgment [Doc. #25] filed September 11, 2014, this Court granted Plaintiff's Motion to Reverse the Commissioner because the ALJ's decision to give less weight to Dr. Kurland's medical opinions was not supported by substantial evidence. Dr. Kurland, Plaintiff's treating psychiatrist, had provided his medical opinion that Plaintiff would have certain limitations in social functioning and that Plaintiff would likely be absent from work three or more times per month. The ALJ accorded Dr. Kurland's opinion less weight due to apparent inconsistencies in the doctor's treatment notes-diagnosing Plaintiff with major psychotic disorder, but then not observing any delusions or hallucinations-and inconsistencies with Plaintiff's reported activities of daily living, which included household chores, running errands, caring for a pet, using a computer, going to the library, paying bills, and attending computer club meetings. The ALJ also gave little weight to the respective opinions of Dr. Jordan, a consultative examiner, and Dr. Doherty, Plaintiff's primary care physician, both of which tended to corroborate Dr. Kurland's opinion. As more fully described in this Court's September 11, 2014 Order and Judgment, the ALJ failed to identify specific evidence that conflicted with Dr. Kurland's opinions regarding Plaintiff's inability to manage job-related stress. Moreover, the ALJ failed to sufficiently demonstrate how Plaintiff's daily living activities allegedly contradicted evidence regarding Plaintiff's difficulty in managing stress. Thus, this Court remanded this matter because the ALJ's findings as to the weight given Dr. Kurland's medical opinions were not supported by substantial evidence. In its Order and Judgment, this Court also rejected Plaintiff's argument that the Commissioner's decision should be reversed because the ALJ erred in her Step-Five analysis. In doing so, the Court noted that the ALJ erred by accepting "groundskeeper" as a viable position for Plaintiff, but found that the error was harmless because the ALJ identified other jobs Plaintiff was capable of performing given his RFC.

On December 9, 2014, Plaintiff filed the present Application for Attorney Fees [Doc. #26] arguing he is entitled to $7, 395.57 in attorney's fees for 38.7 hours of attorney's services under the EAJA because this Court's remand of the matter meant he is a prevailing party under the EAJA. On December 30, 2014, Defendant filed her Response [Doc. #27], arguing that her position in the underlying litigation was substantially justified, which would block Plaintiff from being eligible for attorney's fees. Alternatively, Defendant argues that if the Court determines attorney's fees are proper in this matter, then the amounts calculated by Plaintiff should be reduced due to the incorrect hourly rate he utilized in his computations.


Under the EAJA, a private litigant who has initiated a civil action against the United States may recover attorney's fees if she secures a victory against the United States. 28 U.S.C. § 2412(d)(1)(A). Such attorney's fees shall be awarded if four conditions are met: (1) the party applying for fees must have been a "prevailing party" in the civil action; (2) the application for attorney's fees must be filed within thirty days of the final judgment in the action, and must be accompanied by an "itemized statement" explaining the time and rate used in computing the fee amounts; (3) the position of the government must not have been "substantially justified;" and (4) there must be an absence of "special circumstances [that would] make an award unjust." Id. at § 2412(d)(1)(A)-(B); Comm'r v. Jean, 496 U.S. 154, 158, 110 S.Ct. 2316, 2319, 110 L.Ed.2d 134 (1990). If a private litigant satisfies these conditions, he is eligible for an award of reasonable attorney's fees, in an amount not to exceed $125 per hour unless the court determines that "an increase in the cost of living or a special factor... justifies a higher fee." 28 U.S.C. § 2412(d)(2)(A)(ii).

The parties' briefings on the instant matter present three key issues for this Court to resolve. First, the Court must consider whether Defendant's litigation position was substantially justified so as to preclude an award of attorney's fees to Plaintiff. Second, the Court is tasked with determining the correct hourly rate to utilize in calculating the appropriate award of fees in this matter. Third, the Court must conclude whether an award of costs to Plaintiff is appropriate. This Court will first address the question of whether Defendant was substantially justified in her litigation position.

A. Whether Defendant was Substantially Justified

Defendant concedes that Plaintiff is a prevailing party under the EAJA by virtue of obtaining a judgment reversing the Commissioner and remanding the matter to the ALJ. (Def. Opp. to Pl.'s App. [Doc. #27], at 3.) Defendant's challenge to Plaintiff's eligibility for EAJA attorney's fees is limited to arguing that her litigation position was substantially justified. The reasonableness of Defendant's position dictates whether Defendant was substantially justified. Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988); Cody v. Caterisano, 631 F.3d 136, 141 (4th Cir. 2011); see also Shepperson v. Sullivan, No. 90-1763, 1991 U.S.App. LEXIS 8594, at *9 (4th Cir. May 6, 1991) (government was substantially justified when case involved "difficult issues on which reasonable minds could differ"). A position is substantially justified if it is "justified in substance or in the main'-that is, justified to a degree that could satisfy a reasonable person." Pierce, 487 U.S. at 565, 108 S.Ct. at 2550. The position must be reasonable both in law and in fact. Id .; Cody, 631 F.3d at 141; Mortensen v. Astrue, 428 Fed.Appx. 248, 250-51 (4th Cir. 2011). The government's reliance on an "arguably defensible administrative record, " will usually constitute substantial justification. Crawford v. Sullivan, 935 F.2d 655, 658 (1990) (quoting Guthrie v. Schweiker, 718 F.2d 104, 108 (4th Cir. 1983)); Strong v. Comm'r of Soc. Sec. Admin., 461 Fed.Appx. 299, 300 (4th Cir. 2012); Mortensen, 428 Fed.Appx. at 250-51. The substantially justified inquiry encompasses "all aspects of the civil action" and calls on the district court to "treat[] the case as an inclusive whole, rather than as atomized line-items." Jean, 496 U.S. at 161-61, 110 S.Ct. at 2320; see 28 U.S.C. § 2412(d)(2)(D); Cody, at 141; Mortensen, 428 Fed.Appx. at 250-51. "[W]hen determining whether the government's position in a case is substantially justified, we look beyond the issue on which the petitioner prevailed to determine, from the totality of circumstances, whether the government acted reasonably in causing the litigation or in taking a stance during the litigation." Roanoke River Basin Ass'n v. Hudson, 991 F.2d 132, 139 (4th Cir. 1993); Cody, 631 F.3d at 141 (quoting Roanoke River Basin Ass'n).

In Social Security cases such as the present one, the Fourth Circuit has been careful to distinguish between the substantial justification required for attorney's fees, and the substantial evidence standard required to support an ALJ's determination on an award of benefits. E.g. Mortensen, 428 Fed.Appx. at 251; Evans v. Sullivan, 928 F.2d 109, 110 (4th Cir. 1991); Pullen v. Bowen, 820 F.2d 105, 108 (4th Cir. 1987). Indeed, the Fourth Circuit has "rejected the argument that a claimant is entitled to attorney's fees under the EAJA simply because an ALJ's decision was not supported by substantial evidence." Strong, 461 Fed.Appx. at 300; Crawford, 935 F.2d at 657 ("[T]he [Commissioner] is not automatically liable for attorney's fees every time he loses a case."). When a social security claimant's "eligibility for benefits turns on disputed facts, " the Commissioner is not necessarily unjustified in contesting the claim, even if the claimant ultimately is awarded benefits. Thompson v. Sullivan, 980 F.2d 280, 282 (4th Cir. 1992).

In the present matter, the ALJ gave less weight to Dr. Kurland's opinion. In doing so, the ALJ found that Plaintiff's activities of daily living indicated that "his mental impairments do not limit him to the extent opined by Dr. Kurland." (Admin. Rec. [Doc. #11-3], at 29.) The ALJ ultimately found Dr. Kurland's report to "contain inconsistencies." (Id.) As observed previously by this Court in its September 11, 2014 Judgment and Order, none of the ALJ's observations explained how these alleged inconsistencies relate to Plaintiff's inability to manage work-related stress. Accordingly, this Court reversed the decision of the Commissioner and remanded the matter.

Nonetheless, the determination that substantial evidence did not support the ALJ's decision to give Dr. Kurland's opinion less weight does not equate to a finding that Defendant's position that Plaintiff was not eligible for benefits was unjustified. Indeed, throughout this case's litigation, Defendant has highlighted a variety of potential inconsistencies in Dr. Kurland's opinion and other evidence, including Plaintiff's own testimony. For example, Defendant noted that Dr. Kurland commented on Plaintiff's inability to perform daily living activities, "such as shopping, cooking, using public transportation, paying bills, and ...

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