Gier v. Social Security, Commissioner of
Filing
30
ORDER Denying 23 Petition for Attorney Fees. Signed by District Judge Victoria A. Roberts. (LVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL GIER,
Plaintiff,
vs
Case No: 13-11684
Honorable Victoria A. Roberts
COMMISSION OF SOCIAL SECURITY,
Defendant.
___________________________________/
ORDER DENYING PLAINTIFF’S APPLICATION FOR ATTORNEY FEES
AND COSTS PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT (DOC. #23)
I.
INTRODUCTION
Michael Gier (“Gier”) filed an Application for Attorney Fees and Costs Under the
Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Gier requests $11, 732.00.
For the reasons stated below, the Court DENIES Gier’s Petition.
II.
ANALYSIS
To recover attorney fees under the EAJA, a claimant must satisfy three elements:
(1) he must be a “prevailing party”; (2) the Government’s opposing position must have
been without substantial justification; and (3) there must be no special circumstances
that warrant denying relief. DeLong v. Comm’r of Soc. Sec., 748 F.3d 723,725 (6th Cir.
2014) (citing Marshall v. Comm’r of Soc. Sec., 444 F.3d 837, 840 (6th Cir. 2006); 28
U.S.C. § 2412(d)(1)(A)).
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There is no question that Gier is a prevailing party. Shalala v. Schaefer, 509 U.S.
292, 301-302 (1993).
With respect to the second element, Gier alleges that the Government’s position
was not substantially justified because the ALJ failed to properly consider the res
judicata effect of a prior ALJ decision finding that Gier suffered from ‘severe’ anxiety,
failed to include in her hypotheticals to the vocational expert limitations caused by such
‘severe’ anxiety, and failed to consider Gier’s ‘severe’ and ‘non-severe’ impairments in
combination. Gier asserts that because the ALJ did not consider the prior ALJ’s
findings, the Commissioner failed to comply with regulatory and applicable case law.
“The Government bears the burden of proving that a given position was
substantially justified, and it discharges that burden by demonstrating that the position
had a “reasonable basis both in law and in fact.”’ DeLong, 748 F.3d at 725-26 (quoting
Pierce v. Underwood, 48 U.S. 552, 565 (1988)). The Government provides three
contentions in support that its position was substantially justified. First, the Government
says that because this Court rejected all but one subpart of the magistrate judge’s
report recommending that the Commissioner’s decision be affirmed, a reasonable
person could think that its position was substantially justified. The Government also
says that the fact the magistrate judge agreed with the Commissioner should be
accorded significant weight.
Second, the Government argues that although the ALJ erred at step two, Gier’s
mental condition was properly addressed when determining his residual functional
capacity (RFC). Furthermore, a reasonable person could conclude that the Drummond
error (Drummond v Comm’r of Soc. Sec., 126 F. 3d 837, 842 (6th Cir. 1997)) (“[a]bsent
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evidence of an improvement in a claimant's condition, a subsequent ALJ is bound by
the findings of a previous ALJ”) found by this Court, was harmless since the prior ALJ’s
findings were also that Gier was not disabled.
Finally, the Government says that this Court’s finding that the evidence did not
establish Gier’s disability also supports a finding of substantial justification. The
Government contends that this Court issued a remand primarily on procedural grounds,
and only after concluding the ALJ did not adequately discuss Gier’s mental impairments
at subsequent steps of the sequential-evaluation process. ALJ VanderHeide did
consider Gier’s mental conditions at the third step of the analysis, but focused only on
his physical limitations when determining that Gier had acquired work skills from past
relevant work and therefore, could engage in another occupation. Although ALJ
VanderHeide did not adequately address Gier’s mental impairment, the Government
argues that the Commissioner had a reasonable basis to conclude that ALJ
VanderHeide did. The Government says that in assessing Gier’s RFC, ALJ
VanderHeide recounted Gier’s testimony about his depression and anxiety, listed three
medications that he had taken for his depression, listened to three prior hearing tapes,
and “read and considered” the function reports Gier filled out. Therefore, the
Government contends that a reasonable person, in this case the Commissioner, could
have concluded that ALJ VanderHeide said enough since she addressed Gier’s mental
conditions at several points when determining RFC. The Court agrees.
The substantial justification of the Government’s position turns on whether the
ALJ’s failure to consider Gier’s non-severe limitations in Gier’s RFC was so erroneous
that it was contrary to both law and fact. This Court finds that the ALJ’s decision was
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substantially justified. This Court issued a Sentence Four remand finding that ALJ
VanderHeide erred in finding that Gier’s mental condition had substantially improved
and by failing to mention Gier’s mental condition, specifically his ‘non-severe’
impairments in combination with his other conditions at the fourth or fifth step of the
sequential five-step process.
On August 18, 2007, ALJ Sasena issued a decision finding that Gier had a
severe mental impairment but only mild functional restrictions relying solely on a report
from Dr. Sharon Ridela-Mehlos, Ph.D., (“Dr. Ridela-Mehlos”) a consultive examiner who
examined Gier on April 5, 2004. On March 20, 2012, ALJ VanderHeide considered
three treatment sources in determining that Gier did not have a severe mental
impairment, including the report from Dr. Ridela-Mehlos. The Court reviewed the two
reports that are not mentioned in ALJ Sasena’s finding and determined that these
reports support a finding that Gier’s mental condition had not improved. The first report
by Dr. Kaniowski said that Gier was taking medication for anxiety during 2008 and 2009.
The second report by Elizabeth Leon, LMSW, (“Elizabeth Leon”) says that from October
2006 through 2007, Gier participated in a sixteen session program for anxiety and
depression. The Court found that ALJ VanderHeide gave the second report by Elizabeth
Leon very limited weight despite its evidence of the fact that Gier’s mental condition had
not improved. Thus, the Court found insufficient evidence to justify ALJ VanderHeide’s
finding that Gier did not have a severe mental impairment. The Court further held that
principles of res judicata apply and ALJ VanderHeide was bound by ALJ Sasena’s
earlier finding that Gier did have a severe mental impairment.
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Next, the Court held that Magistrate Judge Grand erred in applying the harmless
error standard to ALJ VanderHeide’s findings after she failed to consider Gier’s mental
impairment was severe at step two of the five-step analysis. The harmless error
standard does not apply when it isn’t clear that non-severe limitations were sequentially
considered, in this case at the fourth and fifth steps of the analysis.
The Court finds that the Government has sufficiently met its burden to prove that
its position was substantially justified. The sole reason for remand was for clarification of
the combined effect of all of Gier’s impairments on his ability to work. Thus, a remand
issued for clarification of the effect of Gier’s ‘severe’ and ‘non-severe’ limitations to
determine his RFC may have still rendered a finding of non-disability or denial on
appeal. Based on the record, the Commissioner could have reasonably determined that
ALJ VanderHeide’s finding had a “reasonable basis both in law and in fact.” The Court’s
earlier determination that ALJ VanderHeide failed to adequately explain her findings
does not establish that the Government’s position lacked substantial justification.
DeLong 748 F.3d at 727. Furthermore, “a fully justified position may be poorly
explained, and remand may be the most appropriate vehicle for elucidating that
position.” Id. The Sixth Circuit has held that “[remand] alone is not a proper basis for the
allowance of fees and expenses under the EAJA.” Id. at 726 (citing Couch v. Sec. of
Health & Human Servs., 749 F.2d 359, 360 (6th Cir. 1984)).
III.
CONCLUSION
For the above reasons, Gier’s application for attorney fees and costs under EAJA
is DENIED.
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IT IS ORDERED.
/s/ Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: January 25, 2016
The undersigned certifies that a copy of this
document was served on the attorneys of
record by electronic means or U.S. Mail on
January 25, 2016.
s/Linda Vertriest
Deputy Clerk
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