United States District Court, N.D. Mississippi, Oxford Division
ORDER ON PETITION FOR ATTORNEY'S FEES
M. VIRDEN U.S. MAGISTRATE JUDGE.
the court is Plaintiff's petition  for attorney's
fees pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d). In these
proceedings Plaintiff sought judicial review of the Social
Security Commissioner's final decision denying a claim
for benefits. By Judgment  dated March 23, 2017, this
court remanded this case to the Commissioner for further
proceedings. Plaintiff now seeks attorney's fees in the
amount of $4, 198.92 for twenty-two hours of attorney time
before this court at a rate of $190.86 per hour under the
EAJA on the grounds that he was the prevailing party and the
Commissioner's position was not “substantially
justified.” The Commissioner, on the other hand,
opposes any award of fees on the sole ground that her
position was “substantially justified.” As
explained in more detail below, the court finds the
Commissioner's arguments are to no avail and that
Plaintiff is entitled to the award requested.
Equal Access to Justice Act provides for the award of court
costs and attorney's fees to the “prevailing
party” in a judicial review of agency action, unless
the position of the United States was “substantially
justified” or “special circumstances” would
make an award unjust. 28 U.S.C. § 2412(d)(1)(A). A party
who wins a remand order in a social security disability case
is a “prevailing party” under the EAJA. Rice
v. Astrue, 609 F.3d 831, 833-34 (5th Cir. 2010);
Baker v. Bowen, 839 F.2d 1075, 1081 (5th
Cir. 1988). Here, of course, there is no dispute that
Plaintiff was the prevailing party. And, the Commissioner
raises no special circumstances that would make an award of
fees unjust. Accordingly, the court need only address the
issue of whether the Commissioner's position was
Commissioner's main contention is her position was
“substantially justified” because Plaintiff did
not allege his hypertension was disabling in his original
brief before the court but, instead, only argued the issue on
supplemental briefing ordered by the court.
believe it's helpful to consider the findings made by the
court. As recited in the Final Judgment-in pertinent part-the
[T]he ALJ's residual functional capacity
(“RFC”) determination is not supported by
substantial evidence in the record. Most notably, in 2011
during a consultative examination, the claimant was warned by
Dr. Jim Adams not to physically exert himself until after he
had seen a doctor regarding his extremely high blood
pressure, which was 230/120 and 205/110 that day.
Furthermore, the record contains findings of consistently
high blood pressure readings well into 2014; and, indeed, the
ALJ concluded the claimant's hypertension was severe and
uncontrolled by medications. Nevertheless, the ALJ found,
among other things, the claimant could perform work at all
levels of exertion.
The record in this case does not clearly establish what the
claimant can do in the way of work related
activities despite suffering from uncontrolled high blood
pressure. Indeed, the ALJ did not have the benefit of any
medical provider's assessment of the claimant's
functional capacity. And, because the record does not lend
itself to a commonsense judgment of the claimant's
physical abilities, the court finds the ALJ failed to fully
develop the record with regard to the claimant's
hypertension. See, e.g., Newsome v.
Barnhart, No. Civ.A.3:03-CV-3030-D, 2004 WL3312833, at
*3-4 (N.D. Tex. Oct. 8, 2004). This failure prejudiced the
claimant, considering that additional evidence in the way of
a physician's assessment of the claimant's functional
capacity may have changed the result.
order to be substantially justified, the Commissioner's
position must have a reasonable basis in law and in fact.
Pierce v. Underwood, 487 U.S. 552, 565 (1988);
Broussard v. Bowen, 828 F.2d 310, 312 (5th Cir.
1987). The government has the burden of proving its position
was substantially justified at every stage of the
proceedings. Davidson v. Veneman, 317 F.3d 503, 506
(5th Cir. 2003) (citing Herron v. Bowen, 788 F.2d
1127, 1130 (5th Cir. 1986)). See also Flores v.
Shalala, 49 F.3d 562, 569 (9th Cir. 1995) (stating the
government must show that it was substantially justified with
respect to the issue on which the court based its remand).
The ALJ's decision is part of the agency's position
and must be substantially justified. Cummings v.
Sullivan, 950 F.2d 492, 497 (7th Cir. 1991); Herndon
v. Comm'r of Soc. Sec., No. 3:08-CV-21-WAP-DAS, 2009
WL 3644892, at * 2 (N.D. Miss. Oct. 30, 2009). Cf.
28 U.S.C. § 2412(d)(1)(B) (“Whether or not the
position of the United States was substantially justified
shall be determined on the basis of the record[, ]”
which includes the administrative agency record on which the
civil action is based.). See also Russell v. National
Mediation Board, 775 F.2d 1284, 1285-88 (5th Cir. 1985)
(holding that the phrase “position of the United
States” in the EAJA encompasses the government's
position during administrative proceedings and litigation).
Therefore, the Commissioner's litigation position (alone)
before the district court is not determinative of the outcome
of the substantial justification inquiry. See Id .
at 1288. In this case, the Commissioner has failed to show
substantial justification for both the ALJ's
determination of the Plaintiff's RFC without the support
of a doctor's opinion and it's arguments made before
while the court acknowledges Plaintiff did not focus on the
specific impairment of hypertension in his initial brief, he
did raise this issue in his disability application and raised
the broader issue of lack of substantial evidence to support
the ALJ's RFC determination in his original brief before
this court. Moreover, in an effort to reach a just resolution
in these non-adversarial proceedings, this court provided
both the claimant and the Commissioner an opportunity to
fully brief the specific issue of the ALJ's RFC
determination as it related to any failure of the ALJ to
fully develop the record with regard to the claimant's
this court essentially determined this case to be one in
which the ALJ “played doctor” in contravention of
well-established law in this Circuit. As pointed out in the
court's ruling, the record did not lend itself to a
commonsense determination of the claimant's RFC as there
was no medical assessment of the claimant's exertional
limitations from a physician. See, e.g., Newsome
v. Barnhart, No. Civ.A. 3:03-CV-3030-D, 2004 WL3312833,
at *3-4 (N.D. Tex. Oct. 8, 2004). Ultimately, the ALJ did not
have sufficient information to determine the effect of the
claimant's hypertension on his work-related abilities,
and the claimant was prejudiced.
defendant's insistence upon arguing in her supplemental
brief, at the reconvened hearing, and now in her response to
Plaintiff's fee petition that the claimant's
hypertension was controlled and that Plaintiff had
white coat syndrome is perplexing especially in light of the
fact that the ALJ expressly found the claimant's
hypertension was his only severe impairment and not fully
controlled by medication, and there is no definitive
diagnosis of white coat syndrome in the claimant's
medical records. Likewise, defendant's argument that the
claimant did not regularly seek treatment for his
hypertension is baffling because there was no reliance by the
ALJ for his decision upon an alleged failure of the claimant
to seek treatment. Indeed, the medical evidence in this
record is replete with notations of the claimant's
hypertension being followed by his treaters and his being
prescribed and taking medication for it. Ultimately, the
conclusion that Plaintiff's hypertension simply was not
responding to the prescribed treatment was inescapable.
the Commissioner's position was not substantially
justified, and she has provided no other basis for
challenging Plaintiff's fee request, the Court finds the
requested fee is reasonable and no special circumstance would
make an award of the fees requested unjust.
IT IS ORDERED:
the Commissioner shall promptly pay to the claimant, for the
benefit of ...