United States District Court, W.D. North Carolina, Charlotte Division
NIKKI T. THOMAS Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security Defendant.
Cogburn, Jr. United Stales District Judge
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.
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. §
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.
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).
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).
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.).
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).
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.
Standard of Review
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).
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).
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 ...