United States District Court, W.D. North Carolina, Statesville Division
SUSAN E. KELLER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
D. Whitney, Chief United States District Judge.
MATTER is before the Court upon Plaintiff's Motion for
Attorney's Fees under the Equal Access to Justice Act.
(Doc. No. 23). Defendant filed a response, (Doc. No. 26),
arguing that the Acting Commissioner's defense of her
final decision was substantially justified. Plaintiff has not
replied and the time for filing a reply has expired. Having
carefully considered the Motion, the record, and the
applicable authority, Plaintiff's Motion is DENIED.
October 19, 2012, Plaintiff filed an application for
disability insurance benefits, alleging a disability onset
date of May 15, 2007. (Tr. 138, 151, 239, 329). Her
applications were denied initially and upon reconsideration.
(Tr. 138, 151). A hearing was held before an Administrative
Law Judge (“ALJ”) on June 4, 2015. (Tr. 65).
Plaintiff was represented by counsel, and a vocational expert
(“VE”) testified. (Tr. 65-80). On July 17, 2015,
the ALJ issued a decision denying Plaintiff's request for
benefits. (Tr. 43). The Appeals Council denied
Plaintiff's request for review on November 3, 2016. (Tr.
1). Plaintiff filed a civil action on January 2, 2017. (Doc.
No. 1). Plaintiff raised three assignments of error: (1) the
ALJ accepted testimony from the VE that apparently conflicted
with the Dictionary of Occupational Titles
(“DOT”); (2) the ALJ did not give a complete
explanation of the nonexertional mental functions in the
broad areas of functioning and did not make a complete
finding as to Plaintiff's mental residual functional
capacity (“RFC”); and (3) the ALJ did not provide
legally sufficient reasons for finding Plaintiff's
testimony not entirely credible. (Doc. No. 11, p. 5). This
Court found “none of these assignments of error so
compelling to merit remand” and granted summary
judgment for the Government. (Doc. No. 14, p. 3-4).
appeal to the Fourth Circuit, Plaintiff raised the same three
assignments of error. The Fourth Circuit affirmed this
Court's decision that the ALJ's credibility analysis
was supported by substantial evidence and that the ALJ
sufficiently and precisely accounted for Plaintiff's
mental impairments when crafting the RFC. Keller v.
Berryhill, 754 Fed.Appx. 193, 195 (4th Cir. 2018). The
Fourth Circuit, however, found that the ALJ erred by failing
to identify and resolve an apparent conflict between the
VE's testimony and the DOT and remanded on that basis.
Id. Plaintiff subsequently filed this instant motion
for attorney's fees on April 25, 2019. (Doc. No. 23).
a motion for attorney's fees and costs to the
“prevailing party” under the Equal Access to
Justice Act (“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). The
parties do not dispute the fact that Plaintiff is the
prevailing party. A plaintiff who receives a remand order in
a Social Security case is a prevailing party for EAJA
purposes. Shalala v. Shaefer, 509 U.S. 292, 301-02
Government has the burden of showing that 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
[G]overnment 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 Suggs v. Colvin, No. 4:11-cv-128-FL, 2013 WL
1455310, at *2 (E.D. N.C. Apr. 9, 2013) (finding that the
Government was substantially justified in arguing that the
ALJ was not required to consider the VA disability
determinations because, prior to the Fourth Circuit's
decision in Bird v. Commissioner, “the law in
this Circuit was less settled regarding whether the ALJ was
required to consider the VA disability 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.
Keller, the Fourth Circuit held that “apparent
conflict exists between a limitation to short and simple
instructions and Reasoning Level 3 occupations. 754 Fed.Appx.
at 198. The Fourth Circuit acknowledged “[s]everal
other courts of appeals have relied on precedent addressing a
simple tasks limitation” and concluded it was
appropriate to do the same.” Id. at n.4.
However, prior to the Fourth Circuit's decision in
Keller, whether an RFC limitation to short and
simple instructions is in apparent conflict with Reasoning
Level 3 occupations was not subject to clear, controlling
precedent. Given the lack of controlling precedent, the
Government reasonably relied on a string of prior decisions
by this Court holding that “[t]here is no direct
correlation between the DOT's reasoning levels and a
limitation to carrying out simple instructions or performing
simple work; thus jobs requiring an individual to perform
such work [are] consistent with a DOT [Reasoning Level of
3].” Martin v. Colvin, No. 1:14-CV-234, 2015
WL 9094738, at *5 (W.D. N.C. Dec. 16, 2015) (Voorhees, J.)
(quoting Carringer v. Colvin, No. 2:13-cv-00027-MOC,
2014 WL 1281122, at *3 (W.D. N.C. Mar. 27, 2014) (Cogburn,
J.)); see also Clontz v. Astrue, No. 2:12-cv-00013,
2013 WL 3899507, at *5 (W.D. N.C. July 29, 2013) (Whitney,
J.) (A reasoning level of 3 is consistent with a limitation
to simple, unskilled work.); Williams v. Astrue, No.
3:11-cv-592, 2012 WL 4756066, at *4-5 (W.D. N.C. Aug. 27,
2012) (Cayer, J.) (same); Thacker v. Astrue, No.
3:11-cv-246-GCM-DSC, 2011 WL 7154218, at *4 (W.D. N.C. Nov.
28, 2011) (Cayer, J.) (same). Although the current landscape
of the law makes clear there is an apparent conflict between
Plaintiff's RFC limitation to short and simple
instructions and the Reasoning Level 3 vocations listed by
the VE, this conflict was less clear at the time of the
Government's argument. Given the string of past successes
when presenting that position to this Court, as well as the
lack of controlling precedent on this issue at the time of
the Government's argument, the Court finds the Government
was substantially justified in its position at the time it
made its argument in the case at bar. See Pierce,
487 U.S. at 561, 569.
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 Fourth
Circuit made clear that “[its] conclusion does not mean
that an actual conflict exists between a simple instructions
limitation and occupations requiring a Reasoning Development
Level 3 . . . [It] decide[s] only that an apparent conflict
exists . . . and that the ALJ was obliged to resolve that
apparent conflict with the VE's help.”
Keller, 754 Fed.Appx. at 199. The Fourth Circuit
expressed no opinion as to whether Plaintiff is unable to
actually perform the identified occupations, further
indicating that the Government was substantially justified in
its position. Id
the Court finds the Government's position was
substantially justified and Plaintiffs Motion for
Attorney's Fees under the Equal ...