SIMPSON v. Astrue, No. 1:2011cv00087 - Document 31 (M.D. Ga. 2013)
Court Description: ORDER denying 28 Motion for Attorney Fees and Costs Under Equal Access to Justice Act. Ordered by Judge W. Louis Sands on 10/23/13 (wks)
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SIMPSON v. Astrue Doc. 31 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E MID D LE D ISTRICT OF GEORGIA ALBAN Y D IVISION DAVID SIMPSON, Plaintiff, v. MICHAEL J . ASTRUE, Com m issioner of Social Security, Defendants. : : : : : : : : : : : Case No. 1:11-CV-87 (WLS) ORD ER Presently pending before the Court is Plaintiff’s Motion for Attorney’s Fees and Costs Under Equal Access to J ustice Act. (Doc. 28.) For the following reasons, Plaintiff’s Motion for Attorney’s Fees and Costs Under Equal Access to J ustice Act (Doc. 28) is D EN IED . PROCED U RAL BACKGROU N D Plaintiff filed the instant Social Security appeal on J une 29, 20 11. On May 24, 20 12, United States Magistrate J udge Thom as Q. Langstaff issued a Report and Recom m endation, stating that because the Social Security Adm inistration Com m issioner’s (the “Com m issioner’s”) residual functional capacity (“RFC”) decision was not supported by substantial evidence, the decision should be reversed and rem anded pursuant to Sentence Four of § 40 5(g). (Doc. 22 at 12.) J udge Langstaff stated that, on rem and, the Adm inistrative Law J udge (“ALJ ”) m ust reconsider his RFC determ ination regarding Plaintiff’s m ental im pairm ents only, and determ ine if there are a significant num ber of jobs in the econom y that Plaintiff can perform . (Id.) Finally, J udge Langstaff stated that the rem and was lim ited to assessing Plaintiff’s m ental 1 Dockets.Justia.com im pairm ents, not Plaintiff’s physical lim itations. (Id.) Both Plaintiff and the Com m issioner objected to J udge Langstaff’s Recom m endation. (Docs. 23, 24.) By a Septem ber 5, 20 12 Order, this Court overruled the parties’ objections and adopted J udge Langstaff’s Recom m endation, thereby reversing the decision of the Com m issioner and rem anding the above-captioned case to the Com m issioner pursuant to sentence four of 42 U.S.C. § 40 5(g). (Doc. 27.) On Novem ber 29, 20 12, Plaintiff m oved for attorney’s fees under the Equal Access to J ustice Act (“EAJ A”) in connection with his social security appeal and rem and. (Doc. 28.) Plaintiff, through his attorney, requests a fee award in the am ount of $ 9,831.77 (53.90 hours at $ 182.41/ hr). (Doc. 28-1 at 4.) D ISCU SSION A prevailing party m ay seek attorney’s fees under EAJ A. The EAJ A requires a court to award to a prevailing party . . . fees and other expenses . . . incurred by that party in any civil action . . . including proceedings for judicial review of Agency action, brought by or against the United States . . . unless the court finds that the position of the United States was substantially justified or that special circum stances m ake an award unjust. 28 U.S.C. § 2412(d)(1)(A). Thus, a party seeking an award of attorney’s fees and other expenses shall subm it an application for fees and other expenses which shows (1) that the party is a prevailing party and is eligible to receive an award under § 2412(d) and the Governm ent’s position is not justified, as well as (2) the am ount sought, including an item ized statem ent that states the actual tim e expended and the rate at which fees and other expenses were com puted. Id. § 2412(d)(1)(B). When a request for EAJ A attorney’s fees is m ade, the Com m issioner has the burden of showing that his position was substantially justified “as a whole.” Mobley v . 2 Apfel, 10 4 F. Supp. 2d 1357, 1359 (M.D. Fla. 20 0 0 ) (citing United States v. Jones, 125 F.3d 1418, 1420 , 1427-31 (11th Cir. 1997)). “To be substantially justified, the Com m issioner's position m ust have ‘a reasonable basis in both law and fact.’” Mobley , 10 4 F. Supp. 2d at 1359 (quoting Jones, 125 F.3d at 1425 (“The governm ent's position is substantially justified under the EAJ A when it is ‘justified to a degree that would satisfy a reasonable person’-i.e. when it has a reasonable basis in both law and fact.”)) In term s of the difficulty of m eeting this standard, “‘[s]ubstantially justified’ does not m ean ‘justified to a high degree;’ the standard is satisfied if there is a ‘genuine dispute,’ or if reasonable persons could differ as to the appropriateness of the contested action.” Pettaw ay v. Astrue, No. 0 6-0 880 , 20 0 8 WL 40 0 7448, at *1 n.1 (S.D. Ala. Aug. 26, 20 0 8) (quoting Pierce v. Underw ood, 487 U.S. 552, 565 (1988)). To determ ine whether the Com m issioner’s position was substantially justified, “[t]he court looks to both the agency's pre-litigation conduct and its litigation position.” Pettaw ay , 20 0 8 WL 40 0 7448, at *1 (noting that “for purposes of fee award under EAJ A, ‘position of the United States m eans, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based’”) (quoting 28 U.S.C. § 2412(d)(2)(D)) (additional internal quotations om itted). Im portantly, the fact that a case is rem anded does not autom atically dictate a finding that the Com m issioner’s position was not substantially justified. Mobley , 10 4 F. Supp. 2d at 1359; Molina v. Com m ’r of Social Sec., 750 F. Supp. 2d 1341, 1344 (M.D. Fla. 20 10 ) (noting that “[a] num ber of courts have denied EAJ A fee awards irrespective of a sentence four rem and of a Social Security disability appeal”); see, e.g., Reeves v. Bow en, 841 F.2d 383, 385 (11th Cir. 1988). This assertion applies even where the rem and is based on a court’s finding that the Com m issioner’s decision is not supported 3 by “substantial evidence.” See Tant v. Heckler, 577 F. Supp. 448, 450 (D.C. Ga. 1983) (“[T]he finding Secretary's decision was not supported by substantial evidence does not autom atically require a concurrent finding by this court that the Secretary's position was not substantially justified. To hold otherwise would m ean that EAJ A fees were allowable in every case where the court found an absence of substantial evidence, a result clearly not intended by Congress.”) (additional internal quotations and citation om itted). Here, without any discussion, Plaintiff states that he is the prevailing party, that the Com m issioner’s position was not substantially justified, and that the fee requested is consistent with the prevailing EAJ A rate cap of $ 125, adjusted for inflation. (Doc. 28-1.) The Com m issioner does not contest Plaintiff’s status as a prevailing party or the hourly fee requested. (Doc. 29 at 1.) The Com m issioner does, however, dispute Plaintiff’s contention that his (the Com m issioner’s) position was not substantially justified, and, in the alternative, also asserts that the hours expended by Plaintiff’s attorney were excessive. (Id.) Per the Com m issioner, J udge Langstaff’s Recom m endation stated that “it appears there is no medical evidence to support a finding of functional lim itations based on m ental im pairm ents, [and] it is unlikely the ALJ ’s finding that Plaintiff is ‘not disabled’ will change [even on rem and].” (Id. at 3.) According to the Com m issioner, this statem ent dem onstrates that “it is clear that a reasonable person could have agreed with the Com m issioner’s position that substantial evidence supported the ALJ ’s decision in that aspect of this case and, therefore, the Com m issioner was substantially justified.” (Id.) The Com m issioner also pointed out that J udge Langstaff rejected Plaintiff’s contentions that the Appeals Council erred in failing to vacate the ALJ ’s decision when presented with new evidence, and the undersigned concurred. (Id. at 3-4.) 4 As for the issue related to the m edical-vocational guidelines (“Grids”), the Com m issioner notes that the Court questioned the Com m issioner’s position but did not decide that the position was unreasonable or rule against it. (Id. at 4.) Thus, the Com m issioner argues that because a reasonable person could have agreed that the evidence supported the ALJ ’s RFC finding and that such an RFC did not preclude the use of the grids, the Com m issioner’s defense of this case was substantially justified. (Id. at 5.) In Reply, Plaintiff states that it was not substantially justified for the ALJ not to take into account the m ental lim itations he found for Plaintiff when he described Plaintiff’s residual functioning capabilities. (Doc. 30 at 2.) Plaintiff also pointed to J udge Langstaff’s assertion that the ALJ appeared to “play doctor” by substituting his personal opinion for that of the experts. (Id.) Finally, Plaintiff stated that the Court’s conclusion that the ALJ ’s decision was internally inconsistent shows that the Com m issioner’s position was not substantially justified. (Id.) After reviewing the parties’ argum ents, the Court finds that it agrees with the Com m issioner. On balance, the Court rem anded the case to the ALJ to further clarify why Plaintiff is “not disabled” because, as noted by J udge Langstaff, “this case is unique in that the ALJ provided m ore lim itations than the record as a whole supports.” (Doc. 22 at 8.) Specifically, the Court found that the ALJ im posed m ental lim itations, designated as severe, that were not supported by the m edical evidence in the record.1 Thus, the Court concluded that a rem and was appropriate so that ALJ could clearly articulate how he arrived at the determ ination that Plaintiff has m ental im pairm ents 1 It im portant to note as well that the Court did acknowledge that Step 2 of the five-step sequential evaluation process m ay dictate a finding of severe im pairm ent even when the im pairm ent may be “trivial” at best. (Doc. 27 at 8) (citing McDaniel v. Bow en, 80 0 F.2d 10 26, 10 31 (11th Cir. 1986)). Thus, this is further reason as to why the Court cannot com fortably say that the Com m issioner’s position was not substantially justified. 5 and lim itations, where the record, on its face, does not appear to reflect the sam e. Contrary to Plaintiff’s assertion, such a conclusion does not lead to a finding that the Com m issioner’s defense of this action was not substantially justified, or that it lacked a reasonable basis in both law and fact. A sim ilar, and instructive, conclusion was reached in an analogous case, W illiam s v. Astrue, No. 0 9-0 0 540 , 20 10 WL 4736288 (S.D. Ala. Nov. 15, 20 10 ). In W illiam s, the Com m issioner’s decision was rem anded for further consideration of the plaintiff’s intellectual capabilities. 20 10 WL 4736288, at *2. The Court noted that the “rem and was necessary because ‘the ALJ ’s finding of borderline intellectual functioning [wa]s not supported by substantial evidence.” Id. (internal quotations om itted). Ironically, in W illiam s, too, the Court concluded that the ALJ rendered his own m edical diagnosis because no m edical source m ade a diagnosis of borderline intellectual functioning. Id. at *2 n.4. Nevertheless, despite the fact that “the Com m issioner’s reasoning regarding the m erits of the ALJ ’s determ ination was ultim ately unpersuasive to the Court,” the Court found that it was still substantially justified because “a ‘position can be justified even though it is not correct, and . . . it can be substantially justified if a reasonable person could think it correct.’” Id. at *3 (quoting Pierce, 487 U.S. at 566 n.2). Therefore, the Court denied Plaintiff’s request for fees. Id. Applying the analysis in W illiam s, the Court finds the Com m issioner’s position in the case sub judice to be substantially justified for the sam e reason. Sim ply put, both the undersigned and J udge Langstaff found that the record lacks support for the lim itations the ALJ articulated, and the rem and was im posed to give the ALJ an opportunity to flesh out his findings in a m ore robust fashion. This rem and did not signal that the Com m issioner lacked substantial justification, only that 6 it needed a better-developed justification. Accordingly, the Court finds that the Com m issioner’s position was substantially justified, and therefore Plaintiff’s Motion for Attorney’s Fees and Costs Under Equal Access to J ustice Act (Doc. 28) is D EN IED . SO ORD ERED , this 23 rd day of October, 20 13. / s/ W. Louis Sands TH E H ON ORABLE W . LOU IS SAN D S, U N ITED STATES D ISTRICT COU RT 7
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