Hutchinson v. Social Security, Commissioner of

Filing 44

ORDER Adopting 38 Report and Recommendation Denying 32 Motion for Attorney Fees, filed by Jessica L. Hutchinson. Signed by District Judge Stephen J. Murphy, III. (CCoh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JESSICA L. HUTCHINSON,
Plaintiff,

Case No. 12-cv-11337

v.

HONORABLE STEPHEN J. MURPHY, III

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
ORDER ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION (document no. 38),
AND DENYING MOTION FOR ATTORNEY’S FEES (document no. 32)
Social Security claimant Jessica L. Hutchinson seeks costs and attorneys fees under
the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, because the Court remanded
her case for further administrative proceedings after finding that the administrative law
judge who reviewed her claim failed to make a required factual finding and to adequately
explain another. The magistrate judge tasked with issuing a report and recommendation
on Hutchinson’s motion recommends denying her request. For even though the
Commissioner of Social Security (“Commissioner”) did not prevail in litigation, the
magistrate explains, the Commissioner nevertheless took a position that was substantially
justified. Hutchinson disagrees with this assessment. The Court does not.
BACKGROUND
Hutchinson, who has an IQ of between 67 and 80, applied for supplemental Social
Security income when she was 19. Admin. Record 10, 12, 14, ECF No. 10-2. The
administrative law judge (“ALJ”) reviewing her application determined that she was not
disabled. Id. at 18.

At step one of the disability analysis, the ALJ found that Hutchinson had not engaged
in substantial gainful activity since her November 3, 2008 application date. Id. at 12. The
ALJ then found at step two that Hutchinson had an organic mental disorder and attention
deficit disorder that were severe impairments. Id. But at step three the ALJ found that she
did not have an impairment that met or was the medical equivalent of one of the listed
impairments in the Social Security regulations. Id. at 12–14. Moreover, the ALJ found at
step four that Hutchinson had the residual functional capacity to perform medium work if
limited to simple, repetitive, and unskilled tasks. Id. at 14–17. And at step five the ALJ
found that there were a significant number of jobs in the national economy that Hutchinson
could perform. Id. at 17. Therefore, the ALJ concluded that she was not disabled.
After the ALJ’s decision became the final decision of the Commissioner, Hutchinson
sought judicial review. The case was referred to a magistrate judge for a report and
recommendation.
In a report and recommendation later adopted by the Court, the magistrate concluded
that the Commissioner had erred at step three in analyzing whether Hutchinson’s condition
equaled the mental impairments listed in Listing 12.05(C). Report & Recommendation on
Cross-Motions for Summ. J. ("Report") 26–33, ECF No. 28. To qualify as intellectually
disabled under Listing 12.05(C), a claimant must show that (1) she meets the introductory
paragraph of Listing 12.05, which requires a claimant to have significantly subaverage
general intellectual functioning with deficits in adaptive function that initially manifested prior
to the age of 22; (2) she has a valid verbal, performance, or full-scale IQ score of 60
through 70; and (3) she has a physical or mental impairment, other than mental retardation,

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that is an additional and significant work-related limitation. See 20 C.F.R. Pt. 404, Subpt.
P, App. 1 § 12.05; Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
In Hutchinson’s case, the magistrate reasoned, the ALJ had misapplied these criteria
in two ways. One error was that the ALJ failed to make a finding regarding whether
Hutchinson satisfied the criteria in the introductory paragraph of Listing 12.05. Report
29–30. And a second problem was that the ALJ did not adequately explain why neither
Hutchinson's organic mental impairment nor attention deficit disorder was an additional and
significant work-related limitation distinct from her low IQ. Report 30–33. Therefore, the
magistrate concluded that remand was proper even though the Commissioner had offered
plausible (but post hoc) explanations for the ALJ's decision and there were no other errors
in the ALJ's decision.
After the entry of judgement, Hutchinson moved for a fee award under the EAJA.
Although she was the prevailing party, the magistrate recommends denying her motion
because the Commissioner's position was substantially justified. Hutchinson objects to this
conclusion.
STANDARD OF REVIEW
A district court must review timely and specific objections to a magistrate judge's
report and recommendation de novo. See Fed. R. Civ. P. 72(b)(2)–(3). The court, however,
may adopt, reject, or amend the portions of the report and recommendation to which no
party properly objects. See Fed. R. Civ. P. 72(b)(3); Thomas v. Arn, 474 U.S. 140, 150
(1985).

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DISCUSSION
To obtain an award of attorney's fees under the EAJA, a plaintiff must be the
prevailing party, the government must have opposed the plaintiff without substantial
justification for its position, and there must be no special circumstances that make an
award unjust. Marshall v. Comm'r of Soc. Sec., 444 F.3d 837, 840 (6th Cir. 2006). Here,
the only dispute is whether the second criterion is satisfied.
Even if the government loses on a particular case or argument, its position is
nevertheless substantially justified if reasonable people could differ on the appropriateness
of contesting the plaintiff's claim. See Pierce v. Underwood, 487 U.S. 552, 565 (1988);
Howard v. Barnhart, 376 F.3d 551, 554 (6th Cir. 2004). Just because an ALJ makes a
procedural error, such as failing to adequately explain a decision, that results in remand
does not mean that a fee award is appropriate. See Delong v. Comm'r of Soc. Sec., --- F.3d
---, 2014 WL 1378136, at *2–4 (6th Cir. 2014). Rather, in a Social Security case, the
question is whether the Commissioner's decision to deny benefits and defend that decision
is reasonable. Id. at *3.
Throughout this litigation, the Commissioner has taken the position that Hutchinson
is not disabled. There is substantial justification for the Commissioner's position. Even
though the ALJ failed to make a required finding and explain the step three analysis
adequately, as previously observed, the Commissioner has offered plausible supporting
explanations for the ALJ's conclusion that Hutchinson does not have a mental impairment,
other than mental retardation, that is an additional and significant work-related limitation.
Several medical opinions cited by the ALJ support the Commissioner's position that
Hutchinson is not mentally retarded but rather is functioning in the borderline range. Admin.
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Record 12, 14. Also, the ALJ considered opinions from the reviewing state psychologist and
Hutchinson's school psychologist suggesting that Hutchinson's learning difficulties and
organic mental disorder may be interrelated to her limited intellectual capacity. Admin.
Record 14, 16, 176. That evidence is reasonable support for the Commissioner's position
that Hutchinson is not disabled because she does not suffer from a limitation of function
that is distinct from her low IQ.
Hutchinson, of course, interprets the evidence differently. And there is some —
though not overwhelming — evidence that she may be disabled. But the conflicting
evidence of disability here renders the government's position substantially justified despite
the procedural errors necessitating remand. After all, remand "may result in yet another
denial of benefits," and the Court "may well sustain such a denial on appeal." Delong, 2014
WL 1378136, at *4.
ORDER
WHEREFORE, it is hereby ORDERED that the report and recommendation on
attorney's fees (document no. 38) is ADOPTED.
IT IS FURTHER ORDERED that the motion for attorney's fees (document no. 32) is
DENIED.
SO ORDERED.

s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: May 17, 2014

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I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on May 17, 2014, by electronic and/or ordinary mail.
s/Carol Cohron
Case Manager

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