Glenn v. Social Security, Commissioner of

Filing 30

Opinion and ORDER denying 25 Motion for Attorney Fees. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
SALENA GLENN,
Plaintiff,

Case No. 12-11433
Honorable Thomas L. Ludington

v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
/
OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR ATTORNEY’S FEES
On March 30, 2012, Salena Glenn filed a complaint against the Commissioner of Social
Security. Glenn requested judicial review of the Commissioner’s final decision denying her
claim for Social Security Disability benefits. On July 10, 2013, the Court adopted United States
Magistrate Judge Mark A Randon’s report and recommendation, granted Glenn’s motion for
summary judgment, denied the Commissioner’s motion for summary judgment, and remanded to
the Commissioner for further proceedings.

The decision turned on the fact that the

Administrative Law Judge’s “determination that [Glenn] was not disabled is not supported by
substantial evidence[.]” Report & Rec. 1, ECF No. 22.
On August 21, 2013, Glenn’s attorney filed a motion for attorney’s fees under the Equal
Access to Justice Act (EAJA), 28 U.S.C. § 2412. Because the Commissioner’s position in this
case was substantially justified, however, Glenn’s motion will be denied.
I
In August 2008—having experienced injuries and pain stemming from a March 2007 car
accident and a skin disease—Glenn submitted an application for disability benefits with the

Social Security Administration. After the Commissioner initially denied Glenn’s application,
she appeared without counsel for a hearing before Administrative Law Judge (ALJ) Curtis R.
Boren, who considered the case de novo.
During the hearing before Judge Boren, Glenn testified that she has headaches that make
her feel like she is going to die, constant neck and back pain, trouble with her memory, problems
with her shoulder, and cysts around her vulva that occasionally prevent her from walking and
require extra bathroom breaks. See Admin. R. 38–50.
Following the hearing, Judge Boren issued a written decision on September 27, 2010
concluding that Glenn “has the residual functional capacity to perform light work” and was not
disabled. Id. at 18. Because “the claimant is capable of making a successful adjustment to other
work that exists in significant numbers in the national economy,” Judge Boren indicated that “[a]
finding of ‘not disabled’ is therefore appropriate[.]” Id. at 23. On February 9, 2012, Judge
Boren’s findings became the Commissioner’s final administrative decision when the Appeals
Council declined further review. Thereafter, Glenn filed this lawsuit.
On August 13, 2012, Glenn filed a motion for summary judgment, requesting that Judge
Boren’s decision be reversed. On November 28, 2012, the Commissioner filed a motion for
summary judgment, arguing that Judge Boren’s decision should be affirmed. Both motions were
referred to Judge Randon for review.

On June 19, 2013, Judge Randon issued a report

recommending that Glenn’s motion be granted, that the Commissioner’s motion be denied, and
that Judge Boren’s decision be reversed and the case remanded for further proceedings.
Specifically, Judge Randon found that Judge Boren’s “determination that [Glenn] was not
disabled is not supported by substantial evidence[.]” Report & Rec. 1. Neither party filed

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objections and the report and recommendation was adopted. See July 10, 2013 Order, ECF No.
23.
On August 21, 2013, following this Court’s adoption of Judge Randon’s report, Glenn’s
counsel filed a motion for attorney’s fees under the EAJA.
II
The EAJA provides that “a judgment for costs, as enumerated in section 1920 of this title,
but not including the fees and expenses of attorneys, may be awarded to the prevailing party in
any civil action brought by or against the United States[.]” 28 U.S.C. § 2412(a)(1). Further,
Except as otherwise specifically provided by statute, a court shall award to a
prevailing party other than the United States fees and other expenses, in addition
to any costs awarded pursuant to subsection (a), incurred by that party in a civil
action (other than cases sounding in tort), including proceedings for judicial
review of agency action, brought by or against the United States in any court
having jurisdiction of that action, unless the court finds that the position of the
United States was substantially justified or that special circumstances make an
award unjust.
28 U.S.C. § 2412(d)(1)(A).
III
Glenn’s counsel asserts that Glenn is the prevailing party in this action, the
Commissioner’s position was not substantially justified, and the request for fees is reasonable.
Pl.’s Mot 1. But because the Commissioner’s position was substantially justified, Glenn’s
motion will be denied.
There is little doubt Glenn was the prevailing party in this action. The Supreme Court
established that a party prevails by succeeding on “any significant issue in litigation which
achieved some of the benefit the parties sought in bringing suit[.]” Texas State Teachers Ass’n v.
Garland Indep. Sch. Dist., 489 U.S. 782, 791–92 (1989) (brackets omitted). Glenn succeeded in
obtaining the relief she sought—a remand to the Commissioner—and thus she is the prevailing
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party. Accordingly, an award of attorney’s fees turns on whether the government’s position was
substantially justified.
Noted above, the EAJA mandates an award of attorney’s fees “unless the court finds that
the position of the United States was substantially justified or that special circumstances make an
award unjust.” § 2412(d)(1)(A). The Supreme Court has defined substantial justification as
“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 (1988) (internal quotation marks omitted).
The Sixth Circuit employs the test set forth in Pierce. In United States v. Real Prop. Located at
2323 Charms Rd., Milford Twp., Oakland Cnty., Mich., 946 F.2d 437 (6th Cir. 1991), the court
established that “a position can be justified even though it is not correct, and we believe 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.” Id. at 440 (citing Pierce, 487 U.S. at 566 n.2). In
other words, “[t]he test for substantial justification is whether the agency had a rational ground
for thinking it had a rational ground for its action[.]” Kolman v. Shalala, 39 F.3d 173, 177 (7th
Cir. 1994) (citation omitted).
Glenn argues that the Commissioner’s position lacked substantial justification because
Judge Boren’s decision “is unsupported by substantial evidence” and because Judge Boren
“erred by failing to provide [Glenn] the opportunity to cross examine the vocational expert.”
Pl.’s Mot. 4. But a finding that “a decision of the Secretary is not supported by substantial
evidence is not equivalent to a finding that the position of the United States was not substantially
justified.” Couch v. Sec’y of Health and Human Servs., 749 F.2d 359, 360 (6th Cir. 1984).
Indeed, “the Government could take a position that is not substantially justified, yet win; even

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more likely, it could take a position that is substantially justified, yet lose.” Pierce, 487 U.S. at
569.
In this case, the Commissioner’s position was substantially justified. Glenn sought
remand on several substantive grounds, many of which were found to be without merit.1 The
Sixth Circuit has established that victory on several grounds, if not all, renders the government’s
position “substantially justified.” In Green v. Comm’r of Soc. Sec., 52 F. App’x 758 (6th Cir.
2002), the court indicated as follows:
As the district court noted, the Commissioner’s decision was substantially
justified. The government was successful in defending the Commissioner’s
decision as to his evaluation regarding Green’s lack of grip strength,
environmental restrictions, and reliability of several of her doctors. Furthermore,
the court found that the medical evidence did not support her testimony about her
complaints of pain. Rather, the district court remanded the request for benefits to
the Commissioner for further development of the record as to whether Green
could perform light work. As the government was successful in defending the
Commissioner’s decision on several issues, the government’s position was
substantially justified and the denial of attorney’s fees under the EAJA was not an
abuse of discretion.
Id. at 759 (emphasis added). The logic applies here with equal force, as more than half of
Glenn’s claims of error were rejected.

1

Glenn claimed that the ALJ erred by failing to request a medical source statement from Glenn’s treating
physician, Dr. Pollina, and that the ALJ’s residual function capability (RFC) determination is unsupported by
substantial evidence for three reasons: (1) the ALJ erred in affording “great weight” to Dr. Joh and Dr. Tripp’s
opinions; (2) the ALJ erred in failing to afford the proper weight to Dr. Qadir and Dr. Shelby-Lane’s opinions; and
(3) the ALJ failed to accurately consider limitations stemming from Glenn’s hidradenitis suppurativa. Report &
Rec. 19–20. However, Judge Randon concluded that “[b]ecause the medical record was voluminous, the medical
evidence unambiguous, and the record adequate to permit an informed finding by the ALJ, there was no error in the
ALJ’s failure to request a medical source statement from Dr. Pollina.” Id. at 19. Moreover, Judge Randon did not
believe remand was necessary regarding Dr. Tripp’s or Dr. Qadir’s opinions. Id. at 21–22. Glenn also claimed the
ALJ erred in failing to consider her MRI results regarding her left shoulder, but Judge Randon concluded this
argument “lacks merit.” Id. at 25. Accordingly, Judge Randon recommended that the case be remanded to the ALJ
“for a discussion” or “consideration” of only the following: Dr. Joh’s opinion, Dr. Shelby-Lane’s opinion, Glenn’s
hidradenitis suppurtiva, and Glenn’s ability to cross-examine the vocational expert. Id. at 21, 23, 24, and 25–30.

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Moreover, the government had a substantial justification for defending the
Commissioner’s decision despite the remand for further proceedings. Even where Judge Randon
found error, it related primarily to Judge Boren’s explanation for his decision, not the decision
itself. Regarding Dr. Joh’s opinion, the case was remanded “for a discussion on whether [that]
opinion should be afforded ‘great weight[,]’ ” Report & Rec. 21, not that Dr. Joh’s opinion could
not be afforded great weight. As it involved Dr. Shelby-Lane’s opinion, the case was remanded
so Judge Boren could “explain how [Glenn] could perform the lifting requirement of light work
given Dr. Shelby-Lane’s opinion.” Id. at 23. The case was not remanded because no such
explanation was possible. The case was also remanded because Judge Boren considered Glenn’s
hidradenitis suppurtiva immaterial “upon her ability to perform vocational tasks” even though
“the regulations require the ALJ to consider the limiting effects of all [Glenn’s] impairments,
even those that are not severe[.]” Id. at 24 (internal quotation marks and citation omitted). At no
point did Judge Randon or this Court conclude that Glenn was not disabled, only that more
information was necessary before a final adjudication is appropriate.
Indeed, regardless of the remand, it may yet come to pass that Glenn’s application for
benefits will be denied. So despite the insufficiencies of Judge Boren’s written opinion, the
government has prevailed on many of Glenn’s claims for error, with the possibility of more to
come. Its defense of the decision to deny Glenn’s benefits is justified “in the main,” Pierce, 487
at 565, and attorney’s fees will not be awarded.

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IV
Accordingly, it is ORDERED that Glenn’s motion for attorney’s fees, ECF No. 25, is
DENIED.
Dated: October 10, 2013

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing
order was served upon each attorney or party of record
herein by electronic means or first class U.S. mail on
October 10, 2013.
s/Tracy A. Jacobs
TRACY A. JACOBS

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