Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Thomas v. Berryhill

United States District Court, W.D. North Carolina, Charlotte Division

September 20, 2019

NIKKI T. THOMAS Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security Defendant.

          ORDER

          Max O. Cogburn, Jr. United Stales District Judge

         THIS MATTER is before the Court on Plaintiff’s motion for attorney fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A). (Doc. No. 27). Defendant opposes Plaintiff’s motion, arguing that the Government’s position was substantially justified, and, alternatively, that the fees sought are unreasonable. For the following reasons, the Court denies Plaintiff’s motion.

         I. Background

         Plaintiff applied for supplemental security income in October 2012, alleging she became disabled on May 23, 2012. (Tr. 16). Her claim was denied at the initial and reconsideration levels of review. (Id.). A hearing was held before an Administrative Law Judge (“ALJ”) on February 5, 2015, at which plaintiff had a non-attorney representative present. (Id.). In an April 15, 2015, written decision, the ALJ denied Plaintiff’s claim. (Tr. 16-27). The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision on October 11, 2016 (Tr. 1), rendering the ALJ’s decision the final decision of the Commissioner. See 20 C.F.R. § 404.981.

         Plaintiff appealed the Commission’s final decision, arguing before this Court that the Commissioner’s final decision was erroneous because: (1) the ALJ did not sufficiently explain the residual functional capacity (“RFC”) finding; (2) the ALJ failed to resolve an apparent conflict between information in the Dictionary of Occupational Titles (DOT) and the VE’s testimony; and (3) the Appeals Council erred in not vacating the ALJ’s decision based on newly submitted evidence. (Doc. No. 12 at 5-6). The Commissioner filed a responsive brief, explaining why Plaintiff’s arguments lacked merit, (Doc. No. 16 at 4–13), and Plaintiff did not reply.

         This Court agreed with the Commissioner on all three issues. (Doc. No. 17). Noting that the ALJ had discussed the mental aspects of Plaintiff’s RFC “in great detail, ” the Court found that the ALJ had appropriately considered the issues relating to (1) Plaintiff’s mood disorder, anxiety disorder, and stress (id. at 7–8); (2) Plaintiff’s limitation in social functioning (id. at 10); and (3) Plaintiff’s limitations in her activities of daily living (id. at 11). This Court held that the ALJ properly considered the evidence of record and explained her findings, which were based on substantial evidence. (Id. at 7–11).

         The Court similarly rejected Plaintiff’s argument that there was an apparent unresolved conflict between the DOT and the VE’s testimony, pointing to the Court’s prior holdings that “‘there is no direct correlation between the DOT’s reasoning levels and a limitation to carrying out simple instructions or performing simple work’” and “‘thus, jobs requiring an individual to perform such work is consistent with a DOT reasoning level of either 2 or 3.’” (Id. at 12 (quoting Carringer v. Colvin, No. 2:13-CV-27-MOC, 2014 WL 1281122, at *3 (W.D. N.C. Mar. 27, 2014) (citing Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009); Clontz v. Astrue, No. 2:12-cv-12-FDW, 2013 WL 3899507, at *5 n.6 (W.D. N.C. July 29, 2013))). In light of these precedents, this Court held, there was no conflict-actualized or apparent-in this case (id. at 12).

         Finally, this Court rejected Plaintiff’s argument that the Appeals Council erred in declining to disturb the ALJ’s decision based on newly submitted evidence. (Id. at 12–14). The evidence, this Court held, was cumulative to the record the ALJ had considered. (Id. at 13). Thus, after carefully reviewing the ALJ’s decision, the administrative record, and the parties’ briefs, this Court held that the Commissioner’s final decision was supported by substantial evidence. (Id. at 14). The Court therefore affirmed that decision. (Id.).

         On appeal to the Fourth Circuit, Plaintiff abandoned her argument relating to the Appeals Council, but again contended that the ALJ had erred in formulating and explaining the RFC finding and in relying on the VE’s testimony. The Fourth Circuit agreed with Plaintiff and remanded to this Court on February 22, 2019. Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019).

         Plaintiff has now filed the pending motion, requesting $22, 022.00 in EAJA fees, based on 104.90 hours of attorney services at a rate of $192.50 per hour and a reported 19 hours of paralegal time at a rate of $96.25 per hour. (Doc. No. 27-1 at 8–9). In response, the Commissioner agrees that Plaintiff reasonably expended services before the grant of the remand to the Commissioner and was thus a prevailing party within the meaning of the Act. The Commissioner argues, however, that the Government’s position was reasonable in law and fact and, therefore, substantially justified. Accordingly, the Commissioner asks the Court to deny the motion. The Commissioner argues, alternatively, that the fees sought are unreasonable and should be reduced.

         II. Standard of Review

         The EAJA allows an award of reasonable attorney fees and other expenses against the Government if: (1) the party seeking fees is the “prevailing party” in a civil action brought by or against the Government; (2) an application for such fees, including an itemized justification for each amount requested, is filed within thirty days of final judgment in the action; (3) the Government’s position is not “substantially justified”; and (4) no special circumstances make such an award unjust. The absence of any of the above factors precludes a fee award. 28 U.S.C. § 2412(d)(1)(A), (B).

         Although the EAJA itself does not define the term “substantially justified, ” the Supreme Court has stated that “[t]he test of whether the Government’s position is substantially justified is essentially one of reasonableness in law and fact.” Pierce v. Underwood, 487 U.S. 552, 563-64 (1988) (quoting H.R. Conf. Rep. No. 96-1434, p. 22 (1980)). This does not mean “justified to a high degree, ” but rather refers to a “genuine dispute.” Id. at 565. Thus, the Government’s 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.” Id.; see also Cody v. Caterisano, 631 F.3d 136, 141 (4th Cir. 2011) (quoting Pierce, 487 U.S. at 565). The Supreme Court further clarified that “a position can be justified even though it is not correct” and “it can be substantially (i.e., for the most part) justified if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact.” Pierce, 487 U.S. at 566 n.2; see also Cody, 631 F.3d at 141 (quoting Pierce). As the Fourth Circuit has stated, “the Government will avoid paying fees as long as ‘a reasonable person could [have thought]’ that its litigation position was ‘correct.’” Meyer v. Colvin, 754 F.3d 251, 255 (4th Cir. 2014) (quoting Pierce, 487 U.S. at 566 n.2).

         The Government is therefore free to litigate reasonable positions, regardless of whether its position ultimately prevails, without the added risk of exposure to attorney fees. “While the EAJA redresses governmental abuse, it was never intended to chill the government’s right to litigate or to subject the public fisc to added risk of loss when the government chooses to litigate reasonably substantiated positions, whether or not the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.