United States District Court, W.D. North Carolina, Asheville Division
JAMES L. BAILEY, Plaintiff,
ANDREW SAUL, Defendant.
D. Whitney Chief United States District Judge
MATTER is before the Court on Plaintiff's Petition for
Attorney's Fees Under the Equal Access to Justice Act, 28
U.S.C. § 2412. (Doc. No. 20). Defendant filed a response
in opposition to Plaintiff's Application for
Attorney's Fees arguing the Government's position was
substantially justified, to which Plaintiff replied. (Doc.
No. 21); (Doc. No. 22). Having carefully considered the
Petition, the record, and applicable authority, the Court
DENIES the Motion.
March 12, 2019, this Court vacated the Commissioner's
decision regarding Plaintiff's application for
Supplemental Social Security Income and Disability Insurance
Benefits and remanded for a new hearing and further
consideration. (Doc. No. 18). This Court concluded an error
occurred when the ALJ failed to identify an apparent conflict
between the express language of the Dictionary of
Occupational Titles (“DOT”) and the Vocational
Expert's (“VE”) testimony. The Court held an
apparent conflict existed based on the Fourth Circuit's
newly issued holding in Thomas v. Berryhill, 916
F.3d 307, 310 (4th Cir. 2019), a decision published after the
initial proceedings and ALJ decision. The Court remanded
under Sentence Four of 42 U.S.C. § 405(g). (Doc. No. 18,
p. 6). Plaintiff subsequently filed the instant Motion for
Attorney's Fees and Costs on June 07, 2019. (Doc. No.
a motion for attorney's fees and costs to the
“prevailing party” under the EAJA is proper
“unless the court finds that the position of the United
States was substantially justified or that special
circumstances make an award unjust.” 28 U.S.C. §
2412(d)(1)(A). It is undisputed Plaintiff is the prevailing
party. See Hensley v. Eckerhart, 461 U.S. 424, 433
(1983) (holding when the court remands under Sentence Four of
42 U.S.C. § 405(g) the plaintiff is the prevailing
Government has the burden of showing its position was
substantially justified. United States v. 515 Granby,
LLC, 736 F.3d 309, 314 (4th Cir. 2013) (citing EEOC
v. Clay Printing Co., 13 F.3d 813, 815 (4th Cir. 1994)).
Substantial justification does not require the position to be
correct-a position may be substantially justified if a
reasonable person could think it correct. See Pierce v.
Underwood, 487 U.S. 552, 566 n.2 (1988). “The
government can defeat a claim for attorney's fees by
showing that its position had a reasonable basis in both fact
and law.” Crawford v. Sullivan, 935 F.2d 655,
656 (4th Cir. 1991) (citing Pierce, 487 U.S. at
legal question of whether attorney's fees should be
awarded is not answered in context of “what the law now
is, but what the Government was substantially justified in
believing it to have been.” Pierce, 487 U.S.
at 561. If, at the time of the Government's argument,
circuit law was less settled than at the time of the
Court's order, that may support a finding of substantial
justification. See Pierce, 487 U.S. at 561; see
also Snuggs v. Colvin, No. 4:11-CV-128-FL, 2013 U.S.
Dist. LEXIS 51034, at *5-6, 2013 WL 1455310 (E.D. N.C. April
9, 2013) (finding substantial justification because at the
time of the Government's argument, circuit law was less
settled regarding the ALJ's consideration of
Veteran's Affairs decisions). A string of successes of a
position, while not conclusive, can be indicative of a
substantially justified position. See Pierce, 487
U.S. at 569.
to the Fourth Circuit's decision in Thomas v.
Berryhill, “this Court has consistently held there
is no apparent conflict between an RFC limitation to simple,
routine, repetitive work and Reasoning Level 2
occupations.” Street v. Berryhill, No.
1:17-CV-00204-FDW, 2018 WL 1935866, at *6 (W.D. N.C. Apr. 24,
2018); see also Hammond v. Berryhill, No.
3:17-CV-00096-FDW, 2018 WL 1472488, at *7 (W.D. N.C. Mar. 26,
2018) (holding no apparent conflict between a RFC that limits
a plaintiff to “simple, work-related instructions and
directions” and jobs that require General Education
Development (“GED”) Reasoning Level 2). Although
the current landscape of the law makes clear there is an
apparent conflict between Plaintiff's RFC and GED
Reasoning Level 2 needed for the vocations listed by the VE,
this conflict was less clear at the time of the
Government's argument. Based on the string of past
successes when presenting that position in this Court, the
Government was substantially justified in its position at the
time it made its argument in the case at bar.
where a case is remanded for the ALJ to inquire further into
purported DOT and RFC conflicts, but the ALJ's decision
may not ultimately be affected by the clarification, the
Government's position is likely substantially justified.
See Goode v. Colvin, No. 1:14-CV-00056-FDW, 2015 WL
1384166, at *2 (W.D. N.C. Mar. 25, 2015). Here, the Court
made clear in its order that “the existence of a
conflict here does not mean that on remand the ALJ must find
the Plaintiff unable to perform these jobs . . . the ALJ and
expert need address the conflict and explain.” (Doc.
No. 18, p. 9) (citing Pearson¸ 810 F.3d at
211). The Court expressed no opinion as to the merits of
Plaintiff's claim for disability on remand, further
indicating the Government was substantially justified in its
position. (Doc. No. 18).
the Government based its position on a string of past
successes and the Court left open whether the final decision
will change after further development of the record on
remand. Accordingly, the Government was substantially