Gilbert v. Social Security, Commissioner of
Filing
30
ORDER Rejecting 27 Report and Recommendation and Granting Attorney Fees. Signed by District Judge Victoria A. Roberts. (LVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SUSAN GILBERT,
Plaintiff,
vs
Case No: 09-13529
Honorable Victoria A. Roberts
COMMISSION OF SOCIAL SECURITY,
Defendant.
______________________________________/
ORDER REJECTING REPORT AND RECOMMENDATION
AND GRANTING ATTORNEY FEES
BACKGROUND AND PROCEDURAL HISTORY
Susan Gilbert (“Plaintiff”) appealed a final decision of the Commissioner of Social
Security (“Commissioner”) denying her application for Social Security Benefits. (Doc. #
1). The Court rejected Magistrate Judge Steven R. Whalen’s Report and
Recommendation and remanded the case to an Administrative Law Judge (“ALJ”) for
further proceedings. (Doc. # 21). The Court concluded that “the ALJ failed to explain
how he considered and weighed the evidence in the record” to conclude that Plaintiff’s
“impairment was not medically equivalent to the 1.04A listing.” (Id. at 10). The Court
further found that the ALJ did not include relevant limitations, which the Vocational
Expert (VE) described as “work preclusive,” in his Residual Functional Capacity finding.
(Id. at 13). The Court concluded that “the ALJ’s opinion on the supportability and
consistency of [Drs. Shah, Visser, and Gilbert’s] medical opinions is not supported by
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substantial evidence, and [the ALJ’s] decision does not provide ‘good reasons’ for
rejecting them in light of [Plaintiff’s] fibromyalgia diagnosis.” (Id. at 16, 18). Lastly, the
Court found that the ALJ failed to assess the impact of Plaintiff’s “obesity, when
combined with the debilitating symptoms of her fibromyalgia, [on her] ability to engage
in substantial gainful activity.” (Id. at 22).
On June 15, 2011, Plaintiff filed her motion for attorney fees and other expenses
under the Equal Access to Justice Act (“EAJA”). (Doc. # 23). Defendant responded
that Plaintiff was not entitled to fees because the Government’s position was
substantially justified. (Doc. # 24). On January 24, 2011, the Magistrate Judge issued
a Report and Recommendation in which he concluded that Defendant’s position was
substantially justified and as a result, Plaintiff is not entitled to attorney fees. (Doc. #
27). Plaintiff filed timely objections. Defendant responded to the objections. (Doc. #29)
For reasons stated below, the Court rejects the Report and Recommendation
and GRANTS Plaintiff’s motion for attorney fees in the amount of $4,281.
I.
STANDARD OF REVIEW
Under Fed. R. Civ. P. 54(d)(2)(D), a court may refer motions for attorney fees to
a magistrate judge as a dispositive pretrial matter. See Callier v. Gray, 167 F.3d 977,
982 (6th Cir. 1999). Review of a magistrate judge’s recommendation on a dispositive
motion is de novo. 28. U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(B)(3). “The district judge
may accept, reject, or modify the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(B)(3).
II.
ANALYSIS
EAJA covers a Social Security case brought under 42 U.S.C. § 405(g):
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(d)(1)(A) 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 any 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.A. § 2412.
To award EAJA fees, the “court must find that (1) the party seeking fees was a
prevailing party in a civil action; (2) the party timely filed an application for fees; (3) the
position of the Agency was not substantially justified; and (4) the fees requested are
reasonable.”
Ralston v. Astrue, 09-CV-14790, 2011 WL 7299836, *2 (E.D. Mich. 2011) (citations
omitted).
The only disputed issue is whether the Government’s position was substantially
justified. (Doc. # 29, p. 2).
1. Substantial Justification
The standard for “substantial justification” is that of reasonableness, and the
Government’s position must be “justified to a degree that could satisfy a reasonable
person.” Jankovich v. Bowen, 868 F.2d 867, 869 (6th Cir. 1989) (citing Pierce v.
Underwood, 487 U.S. 552 (1988)). In Pierce, the court further explained that
“substantially justified” does not mean “reasonably justified.” Pierce at 566, n. 2 (1988).
The court added 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.” Id. The Pierce court
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rejected the House Report Committee statement that “‘substantial justification’ means
more than merely reasonable.” Id. at 566.
The Government has the “burden of showing that its position in the proceedings
was ‘substantially justified.’” U.S. v. 0.376 Acres of Land, 838 F.2d 819, 820 (6th Cir.
1988). Losing the case does not raise a presumption that the Commissioner’s position
was not substantially justified. Howard v. Barnhart, 376 F.3d 551, 554 (6th Cir. 2004)
(citing Scarborough v. Principi, 541 U.S. 401, 415 (2004)). Indeed, in reviewing a
record, a court can find that the government’s position was substantially justified despite
the fact that “the Secretary’s position was not supported by substantial evidence.”
Jankovich at 870. “When evaluating the Commissioner’s position, [the court] considers
the ALJ’s decision as part of the Commissioner’s pre-litigation conduct.” Noble v.
Barnhart, 230 F.App’x 517, 519 (6th Cir. 2007). But “[w]hether or not the Commissioner
was substantially justified is a separate question from whether the decision of the ALJ
was supported by substantial evidence.” Ralston, at *2 (citing Cummings v. Sullivan,
950 F.2d 492, 298 (7th Cir. 1991)).
Plaintiff alleges that the Government’s position was not substantially justified
because the ALJ failed to do a mandatory evaluation of the treating physicians’
opinions, made an incorrect assessment, and rendered an opinion unsupported by
substantial evidence. Plaintiff also says the ALJ’s analysis of the fibromyalgia’s effects
on Plaintiff’s work capacity was based partially on old Sixth Circuit law. (Doc. # 28, p. 23).
The Government contends that the “errors cited by this Court in the merits
decision were articulation deficiencies, [a]s such the Commissioner’s position in reliance
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on the ALJ’s findings was reasonably based in law and fact, and an award of fees would
not be appropriate.” (Doc. # 29, p. 2). Defendant is correct that “[t]he ALJ’s failure to
articulate his reasoning . . . does not, in and of itself, establish that there was not
reasonable basis for the ALJ’s decision to deny benefits.” Saal v. Comm’r of Soc. Sec.
Admin., No. 1:08–cv–347, 2010 WL 2757554, *3 (W.D.Mich. June 24, 2010) (citing
Anderson v. Commr. of Soc. Sec., 198 F.3d 244 (6th Cir. 1999)). Generally,
[i]n considering whether the ALJ’s decision was “substantially justified” for
EAJA purposes, courts distinguish between remands involving “mere
articulation errors” – cases in which there is record evidence to support
the ALJ’s decision, but the ALJ fails to adequately articulate his or her
reasoning--and remands where the district court determines that the
evidence does not support the ALJ’s decision, even when properly
considered. . . . Generally, remands stemming from articulation errors do
not result in a[n] EAJA fee award, while remands following a finding that
the record evidence does not support the ALJ’s disability determination
will lead to the payment of attorneys fees.
Carter v. Astrue, 1:09-CV-0667, 2011 WL 722774, at *2 (N.D. Ohio 2011) (citations
omitted).
The ALJ listed evidence pertaining to Plaintiff’s impairments on four pages under
the step two analysis, but nothing suggests that the ALJ actually considered and
weighed the evidence or that he considered the combination of all impairments. Neither
did the ALJ explicitly state that he considered the combination of all impairments. And,
he did not set forth the medical evidence on which he based his finding under the step
three analysis. (Tr. 23).
In Carter, supra, the court granted the motion for attorney fees because
“a ‘mere articulation error’ was not the reason for the Court’s decision to
reverse and remand this case. Instead, the Court did so because it was
‘unable to determine whether substantial evidence supports the ALJ’s
decision’ . . . because (1) the ALJ’s decision does not indicate whether
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the ALJ considered specifically enumerated categories of evidence,
in addition to objective medical evidence, that the ALJ must consider in
making a credibility finding; and (2) the ALJ did not provide specific
reasons for discounting Carter’s additional evidence in making the
credibility finding.
Carter, at *3 (emphasis added).
As in Carter, this Court’s decision to remand the case was based on the fact that
“[t]he ALJ’s conclusory rejection of equivalence at step three makes it impossible for this
Court to review the adequacy of his determination.” (Doc. # 21, p. 11) This is more
than an articulation error.
Furthermore, the ALJ only briefly referenced selective findings from Dr. Yousuf’s
opinion and did not state the weight he gave to Dr. Yousuf’s opinion. Dr. Yousuf
diagnosed Plaintiff with fibromyalgia (Tr. 489-504). When “an ALJ chooses not to give a
treating source medical opinion controlling weight, and then completely fails to provide
any explanation for this choice in his narrative decision, it is clear that he has committed
a procedural error that typically warrants remand of the case. In such a case, the
Commissioner lacks substantial justification to defend the ALJ’s decision unless he can
reasonably argue under the applicable case law that the procedural error was
harmless.” Walker v. Astrue, 3:08-CV-151, 2010 WL 925787 (E.D. Tenn. 2010).
Plaintiff points to other errors. The ALJ did not state specific reasons for not
giving significant weight to the treating source medical opinions of Dr. Shah and Dr.
Visser. “It is well-established that an ALJ must either accord controlling weight to a
medical opinion from a treating source or ‘set forth some basis for rejecting [the
opinion].’” Walker, at *3 (citing Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir.1987).
A decision denying benefits “must contain specific reasons for the weight given to the
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treating source’s medical opinion, supported by the evidence in the case record, and
must be sufficiently specific to make clear to any subsequent reviewers the weight the
adjudicator gave to the treating source’s medical opinion and the reasons for that
weight.” Wilson v. Commr. of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) citing Soc.
Sec. Rul. 96-2p, 1996 WL 374188, at *5 (1996).
The ALJ also did not discuss certain work-preclusive limitations identified by Dr.
Shah. The limitations include taking unscheduled breaks every three to four hours for
eight to ten minutes at a time. The Vocational Expert (“VE”) testified this would be work
preclusive. Limitations also include Plaintiff’s need to walk for five minutes at least once
during a work day, and her inability to stand for 20 minutes continuously, which the VE
testified would limit the number of jobs Plaintiff could perform. (Tr. 62-63).
The Sixth Circuit has held on numerous occasions that the Commissioner’s
position was not substantially justified when the ALJ failed to follow the government’s
own procedural guidelines in the “good-reason rule” context. See, e.g., Hawke v.
Astrue, No. 3:07–cv–108, 2009 WL 961783, at *3 (S.D.Ohio Apr. 8, 2009) (holding that
the Commissioner was not substantially justified when the ALJ failed to provide good
reasons even though other evidence potentially supported the ALJ); Fisk v. Astrue, No.
3:05–cv–145, 2009 WL 161335, at *3 (S.D.Ohio Jan. 22, 2009) (finding that the
Commissioner’s position lacked a reasonable basis when “it overlooked the significance
of [the] mandatory procedural requirement” of the good reason rule); Walker, at *3
(finding that, when an ALJ fails to provide good reasons, “the Commissioner lacks
substantial justification to defend the ALJ’s decision unless he can reasonably argue
under the applicable case law that the procedural error was harmless”).
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The ALJ -- only briefly and selectively -- mentioned the medical reports of Dr.
Shah and Dr. Visser, and the ALJ did not discuss the reports’ findings that were
inconsistent with the ALJ’s conclusion. The Court finds that the Commissioner could
not have reasonably believed that the ALJ satisfied the procedural requirements of the
good reason rule.
Additionally, the ALJ relied on objective tests which are insufficient in
fibromyalgia cases. (Doc. # 21, p. 19). The ALJ rejected all of Plaintiff’s subjective
complaints of pain because they were inconsistent with the residual functioning capacity
assessment. Concerning the ALJ’s credibility findings, the court in Carter noted,
Judge O’Malley was particularly troubled that the ALJ “discounted all of
Carter’s subjective complaints of pain and its effects solely because she
found that there was no objective medical evidence to support Carter’s
claims.” . . . this type of analysis-based on an implicit finding that the
claimant is not believable-is exactly that which Social Security Ruling 967p is designed to prevent. See Soc. Sec. Rul. 96-7p, 1996 WL 374186, at
* 3 (ALJ not free to make credibility determinations based solely upon
‘intangible or intuitive notion about an individual’s credibility.”).
Carter, at *3 (N.D. Ohio 2011).
The ALJ based credibility findings on Plaintiff’s ability to conduct daily activities
when the Commissioner’s own procedural guidelines state that the Government does
“not consider activities like taking care of yourself, household tasks, hobbies, therapy,
school attendance, club activities, or social programs to be substantially gainful activity.”
See 20 C.F.R. § 404.1527(c). Nevertheless, the ALJ did not consider Plaintiff’s
testimony in which she denied the ability to cook, shop or do laundry because of her
medical condition. (Tr. 49-50). Additionally, the ALJ stated in his report that he “must
make a finding on the credibility of the statements based on a consideration of the entire
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case record.” (Tr. 23). Yet, he failed to assess the findings of Dr. Yousuf and Plaintiff’s
testimony.
In sum, when the “ALJ fails to follow established law and ‘clear congressional
guidance,’ the defendant’s position cannot be substantially justified.” Ralston, at *3
(citing Reese v. Sullivan, 925 F.2d 1395, 1397 (11th Cir. 1991); Washington v. Heckler,
756 F.2d 959, 962 (3rd Cir. 1985). Plaintiff is entitled to attorney fees under the EAJA.
2. Reasonableness of Fees
Plaintiff is represented by Robison Law Office, P.C., a law firm in Albion,
Michigan. Plaintiff requests payment for 24 attorney hours at $150.00/hour, and 11.35
legal assistant hours at $60.00/hour. (Doc. # 23, p. 4). The Government does not
contest the amount. “Under EAJA, the amount of attorney fees awarded
Shall be based upon the prevailing market rate for the kind and quality
services furnished except that . . . attorney fees shall not be awarded
excess of $125 per hour unless the court determines that an increase
the cost of living or a special factor, such as the limited availability
qualified attorney for the proceedings involved justifies a higher fee.
of
in
in
of
Ralston, at *4 (citing 28 U.S.C. § 2412(d)(2)(A)). Plaintiff bears the burden to
prove reasonableness.
Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct.
1933, 76 L.Ed.2d 240 (1983). A court should exclude excessive or inadequately
documented time. Id. at 433.
i. Attorney Rate
“The appropriate market for calculating attorneys’ fees is the market in
which the court sits.” Ralston, at *5 (citing Zanon v. Astrue, No. 08 15337, 2010
WL 1524143, *4 (E.D.Mich. Apr.15, 2010)). Plaintiff lives in the Eastern District
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of Michigan, and her counsel is here. The appropriate market for calculating
attorney fees is the Detroit market. Id.
Plaintiff says that attorney fees should be calculated beginning with the statutory
cap, adjusting for an increase in the cost of living based on the Consumer Price Index
(CPI-U). According to the U.S. Department of Labor’s CPI-U from the Detroit-Ann
Arbor-Flint area, the consumer index as of March 21, 2011, the date when Plaintiff
became a prevailing party, was 206.816. The CPI-U was 151.3 in March 1996 when
the $125.00/hour was established. Ralston, at *5; Zanon, at *4 (E.D.Mich. Apr. 15,
2010). Thus, multiplying $125.00/hour times the ratio of 206.816 divided by 151.3
equals a cost of living increase to $170.86/hour. Plaintiff’s counsel, Charles A. Robison,
has been a practicing attorney since 1981 and has represented social security disability
claimants since 1983. Because his request for attorney fee of $150.00/hour is less than
$170.00/hour, the Court finds his rate to be reasonable. The Court also finds that
Plaintiff’s counsel spent a reasonable number of hours in his representation of Plaintiff.
ii. Legal Assistant Rate
A 2004 National Utilization and Compensation Survey Report states that legal
assistants had a billing rate of $95/hour in the Great Lakes Region. Ralston, at *7.
Sixth Circuit courts have awarded the same or higher rate per hour for paralegal work.
Id., see Tackett v. Astrue, No. 09–cv–13803, 2011 U.S. Dist. LEXIS 81344, at *7
(E.D.Mich. July 26, 2011); Forest Serv.Emps. for Envtl. Ethics v. United States Forest
Serv., 2010 U.S. Dist. LEXIS 131862, at *13 (W.D.Ky. Dec. 14, 2010) ($100.00 per
hour).
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The Court finds both the rate of $60.00/hour and the number of hours requested
to be reasonable.
In sum, the rate of $150.00/hour is to be applied to the requested 24 attorney
hours for a total of $3,600, and the rate of $60.00/hour is be applied to the requested
11.35 legal assistant hours for a total of $681. The total award is $4,281.00.
3. Fees Are Payable to Plaintiff
Under EAJA, the court must award fees “to a prevailing party.” 18 U.S.C. §
2412(d)(1)(A). The government may pay the EAJA fees directly to Plaintiff’s attorney
“after determining that there is no debt to offset and there is a valid assignment.”
Ralston, at *7 (citing Astrue v. Ratliff, 130 S. Ct. 2521, 2528-29 (2010)); Bryant v.
Comm’r. of Soc. Security, 578 F.3d 443, 446-449 (6th Cir. 2009) (under EAJA, attorney
fees are awarded to the prevailing party and not her counsel). Because Plaintiff does
not say that there is a valid assignment, and Plaintiff’s counsel did not submit
verification from the treasury that there are no debts, the Court finds that the
Government must award fees directly to Plaintiff. Ralston, at *7.
V. CONCLUSION
Plaintiff’s application for attorney fees under EAJA is GRANTED. The
Commissioner must pay $4,281.00 to Plaintiff.
IT IS ORDERED.
/s/ Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Date: 5/23/12
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The undersigned certifies that a copy of this
document was served on the attorneys of
record by electronic means or U.S. Mail on
May 23, 2012May 23, 2012.
S/Linda Vertriest
Deputy Clerk
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