MEMORANDUM AND ORDER
JOYNER, Chief Judge.
This civil action is before the Court on Motion of the Plaintiff, Tanya Clark, for Attorney Fees Under the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA"). For the reasons set forth below, the Motion shall be denied.
Plaintiff commenced this action in March, 2010 pursuant to Chapter 7 of the Social Security Act, 42 U.S.C. § 405(g) ("Act"), to obtain judicial review of the final decision of the Commissioner of Social Security to deny her request for Supplemental Security Income ("SSI") benefits pursuant to Title XVI of the Act.
The matter was referred to U.S. Magistrate Judge Linda K. Caracappa for review and preparation of a Report and Recommendation. Judge Caracappa issued her Report and Recommendation on January 31, 2011, finding first, that the record supported and the ALJ sufficiently explained why Plaintiff's chronic heart failure did not meet the severity criteria of section 4.01. (R & R, p. 21). Second, Judge Caracappa concluded that "the ALJ was justified in not affording controlling weight to Dr. Hankins' opinions, despite that she is plaintiff's treating cardiologist," and that "substantial evidence exists for the ALJ's adverse credibility finding." Thus, she was "unpersuaded by plaintiff's argument that the ALJ did not properly follow pertinent regulations in evaluating plaintiff's subjective complaints." (R & R, pp. 21, 25). Noting that while it is true that "the ALJ is required to give great weight to a plaintiff's testimony of subjective complaints," Judge Caracappa likewise found that an "ALJ has the right, as the fact finder, to reject partially, or even entirely, such subjective complaints if they are found not credible." (R & R, p. 24). And, finding that substantial evidence existed to justify an adverse credibility assessment, Judge Caracappa found no basis on which to reverse or remand the ALJ on the fourth assignment of error. (R & R, p. 25).
As to the third assignment of error, however, Judge Caracappa noted that the ALJ accepted the vocational expert's testimony that Ms. Clark could "perform the representative occupations of telephone information clerk and charge account clerk, both occupations requiring a reasoning level of 3 according to the DOT." This testimony was:
(R & R, p. 23, internal citations omitted).
Thus, Judge Caracappa recommended that the matter be remanded to the Commissioner of Social Security for further proceedings to rectify this omission on the part of the ALJ. No objections were filed to the Report and Recommendation and it was approved by this Court in an Order entered on March 4, 2011. On May 23, 2011, Plaintiff's attorney filed the Motion for Attorney's Fees with which we are here concerned.
As noted, the Plaintiff moves to recover counsel fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. Subsection (d)(1)(A) of that statute reads as follows:
The "specific purpose of the EAJA is to eliminate for the average person the financial disincentive to challenge unreasonable governmental actions." Commissioner v. Jean, 496 U.S. 154, 163, 110 S.Ct. 2316, 2321, 110 L.Ed.2d 134 (1990). The EAJA permits awards of attorney's fees only to the extent that they are reasonable. Butterfield v. Astrue, 2011 WL 1740121 at *3, 2011 U.S. Dist. LEXIS 48586 at *8 (E.D.Pa. May 5, 2011) (citing Citizens Council of Delaware County v. Brinegar, 741 F.2d 584, 595-95 (3d Cir.1984)). "The EAJA is not a `loser pays' statute; rather courts should limit their inquiries to whether the government's position was reasonable under the facts and the law." Bryan v. Astrue, 788 F.Supp.2d 360, 363, 2011 WL 1871230 at *2, 2011 U.S. Dist. LEXIS 51878 at *5 (M.D.Pa. May 16, 2011) (quoting Morgan v. Perry, 142 F.3d 670, 685 (3d Cir.1998)). To defeat a prevailing party's application for fees, the government must establish that there is substantial justification for its position by demonstrating "(1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for the theory it propounded; and (3) a reasonable connection between the facts alleged and the legal theory advanced." Id., quoting Morgan, 142 F.3d at 684.
As used in the EAJA, the term "substantially justified" does not mean "justified to a high degree," "but rather `justified in substance or in the main,' that is, justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988). "Substantial justification represents a middle ground between automatically awarding attorney's fees and awarding attorney's [fees] only when the government's position was frivolous." Butterfield, supra, at *3, 2011 U.S. Dist. LEXIS 48586 at *10 (quoting Magwood v. Astrue, 594 F.Supp.2d 557, 559 (E.D.Pa. 2009)). "The government's position consists of both its prelitigation agency position and its litigation position." Williams v. Astrue, 600 F.3d 299, 302 (3d Cir.2009). In determining "whether the government's position in a case is substantially justified," the courts must "look beyond the issue on which the petitioner prevailed to determine, from the totality of the circumstances, whether the government acted reasonably in causing the litigation or in taking a stance during the litigation." Id. Rarely will a party's success on a single claim "be dispositive of whether the government's overall position was substantially justified." Id. (quoting Stewart v. Astrue, 561 F.3d 679, 683 (7th Cir.2009)). Indeed, "[a] position can be justified even though it is not correct, and can be substantially (i.e. for the most part) justified if a reasonable person could think it is correct. . . ." Butterfield, 2011 WL 1740121 at *3, 2011 U.S. Dist. LEXIS at *10 (quoting Pierce, 487 U.S. at 566 n. 2, 108 S.Ct. 2541). Again, it is the government which has the burden to establish substantial justification. Magwood, 594 F.Supp.2d at 560 (citing Stokes v. Bowen, 811 F.2d 814, 816 (3d Cir.1987) and Washington v. Heckler, 756 F.2d 959, 961 (3d Cir.1985)).
Here, the Magistrate Judge recommended a remand to the ALJ for one very limited purpose—to resolve the apparent conflict between the Vocational Expert's opinion that Plaintiff can perform such representative jobs as telephone information clerk and charge account clerk, both of which have a reasoning level of 3, and the ALJ's restriction of Plaintiff to simple, routine tasks. In all other respects, Plaintiff's Complaint seeking judicial review was
For these reasons, Plaintiff's motion is denied via the attached order.
AND NOW, this 15th day of June, 2011, upon consideration of Plaintiff's Motion for Attorney's Fees Pursuant to the Equal Access to Justice Act (Doc. No. 18) and Defendant's Opposition thereto (Doc. No. 19), it is hereby ORDERED that the Motion is DENIED for the reasons set forth in the preceding Memorandum Opinion.