Fowler v. Social Security, Commissioner of

Filing 43

ORDER Adopting 41 Report and Recommendation to Deny Petition for Fees Under the Equal Access to Justice Act and to Grant the Motion for Award of Fees Under 42 U.S.C. §406(b). Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHELLE FOWLER,
Plaintiff,

Case Number 12-15286
Hon. Denise Page Hood

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
/
ORDER ADOPTING REPORT AND RECOMMENDATION
TO DENY PETITION FOR FEES UNDER THE EQUAL ACCESS
TO JUSTICE ACT AND TO GRANT THE MOTION FOR
AWARD OF FEES UNDER 42 U.S.C. § 406(b)
This matter is before the Court on the Magistrate Judge’s Report and
Recommendation (Doc. No. 41) on Plaintiff Michelle Fowler’s Petition for Attorney
Fees Pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 (Doc.
No. 28) and Petition for Attorney Fees Pursuant to 42 U.S.C. § 406(b) (Doc. No. 35).
Plaintiff timely filed Objections to the Report and Recommendation as to the
Magistrate Judge’s recommendation to deny fees under the EAJA. Plaintiff does not
object to the fees awarded under 42 U.S.C. § 406(b).
The Court has had an opportunity to review this matter and finds that the
Magistrate Judge reached the correct conclusion. In her Objections, Plaintiff argues
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that the Magistrate Judge erred in concluding that the Commissioner’s defense of the
Administrative Law Judge’s (“ALJ’s”) decision to deny benefits was “substantially
justified.” In this case, the Court agreed that the matter should be remanded under
sentence four of 42 U.S.C. § 405(g) for further administrative proceedings. The Court
remanded the matter because the ALJ failed to consider the opinion of Plaintiff’s
treating physician, Dr. Paul LaClair, as to Plaintiff’s need to be absent from work.
Although the Court agreed with the ALJ that Dr. LaClair’s opinion as to Plaintiff’s
residual functional capacity was not entitled to any particular weight since that issue
is for the ALJ to decide, the Court found that Dr. LaClair’s finding that Plaintiff
would miss work during episodic flare-ups was an important factor to consider when
giving hypotheticals to the vocational expert. The Court remanded the matter to
address this issue in the ALJ’s final analysis. (Order, Doc. No. 26, Pg ID 897-98)
The EAJA provides that “a court shall award to a prevailing party” in a civil
action against the United States “fees and other expenses . . . 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); DeLong v.
Comm’r of Soc. Sec., 748 F.3d 723, 725 (6th Cir. 2014). A plaintiff who wins a
Sentence Four remand directing further administrative proceedings is a “prevailing
party” under the EAJA. Shalala v. Schaefer, 509 U.S. 292, 301-02 (1993). The
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government bears the burden of showing that its position was “substantially justified.”
Scarbarough v. Principi, 541 U.S. 401, 416 (2004). The government’s position is
substantially justified if it is “justified in substance or in the main–that is, justified to
a degree that could satisfy a reasonable person” or has “a reasonable basis both in law
and fact.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). The government’s
position in defending the ALJ’s decision might be “substantially justified” despite
remand, where remand was based on the ALJ’s “failure to explain his findings
adequately” and not on the weight he found appropriate for various medical opinions.”
DeLong v. Comm’r of Soc. Sec., 748 F.3d 723, 727 (6th Cir. 2014).
The Court agrees with the Magistrate Judge that the Commissioner’s position
was “substantially justified.” The Magistrate Judge carefully reviewed the papers
submitted by the parties and the Magistrate Judge’s Report and Recommendation
recommending remand in this matter. In arguing against remand, the Commissioner
asserted that there was no error by the ALJ because the ALJ sufficiently articulated
his consideration of Dr. LaClair’s statement on Plaintiff’s need to be off work due to
flare-ups. (Doc. No. 22, Pg ID 878-79) The Commissioner cited to the record
regarding Dr. LaClair’s statement on Plaintiff’s need to be off work. (Doc. No. 22,
Pg ID 879) The Commissioner also argued that Dr. LaClair’s repeated statements that
Plaintiff could not work at all, the statement about the flare-ups was a mere
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restatement of the doctor’s opinion that Plaintiff could not work at all. Such a
determination is reserved to the Commissioner and is supported by law. See 20 C.F.R.
§ 404.1527(d)(1). The Commissioner has met her burden to prove that her position
was substantially justified based on the facts and on the law.
As to the fees requested under 42 U.S.C. § 406(b), Plaintiff does not object to
the Magistrate Judge’s findings and recommendation on this issue. Plaintiff was
awarded fees of $9,990.00, and that $10,174.23 was withheld from Plaintiff’s past-due
benefits for payment as attorney fees. Plaintiff’s counsel seeks $184.23 of the
remaining funds. The Court agrees with the Magistrate Judge that Plaintiff’s counsel
be awarded $184.23 in attorney fees pursuant to 42 U.S.C. § 406(b), with the
opportunity to petition for additional funds should they become available.
Accordingly,
IT IS ORDERED that the Report and Recommendation (Doc. No. 41) is
ACCEPTED and ADOPTED as this Court’s findings of fact and conclusions of law.
IT IS FURTHER ORDERED that Plaintiff’s Petition for Attorney Fees under
the Equal Access to Justice Act, 28 U.S.C. § 2412 (Doc. No. 28) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Petition for Attorney Fees
pursuant to 42 U.S.C. § 406(b) (Doc. No. 35) is GRANTED. Plaintiff’s counsel be
awarded $184.23 in attorney fees pursuant to 42 U.S.C. § 406(b), with the opportunity
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to petition for additional funds should they become available.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: February 9, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of
record on February 9, 2017, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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