Sparr v. Colvin

Filing 43

ORDER Granting in Part Plaintiff's 39 Petition for Attorney Fees. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CYNTHIA L. SPARR,
Plaintiff,

Case No. 14-cv-11529
Hon. Matthew F. Leitman

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_________________________________/
ORDER GRANTING IN PART PLAINTIFF’S PETITION FOR
ATTORNEY FEES (ECF #39)
On April 15, 2014, Plaintiff Cynthia L. Sparr (“Sparr”) filed an action in this
Court challenging the denial of her application for Social Security disability
insurance benefits (the “Application”). The assigned Magistrate Judge issued a
Report and Recommendation (the “R&R”) on June 23, 2015, recommending that
this Court affirm the denial of benefits. (See ECF #34.) After reviewing the
Administrative Record and the R&R, this Court issued an Order on August 31,
2015, in which it rejected the R&R and concluded that there was not substantial
evidence supporting the denial of Sparr’s Application (the “August 31 Order”).
(See ECF #37 at 8-10, Pg. ID 892-94.)
As described below, the Court found two material flaws in the September
17, 2012, written decision by the assigned Administrative Law Judge (the “ALJ”)

1

initially denying Sparr’s claim for benefits (the “ALJ’s Decision”). (See ECF #142 at 20-31, Pg. ID 73-84). The Court remanded this action to the Commissioner of
Social Security (the “Commissioner”) for further fact finding and analysis. (See
August 31 Order, ECF #37 at 10, Pg. ID 894.)
On November 25, 2015, Sparr filed a Petition for Attorney Fees (the
“Petition”) under the Equal Access to Justice Act (the “EAJA”), 28 U.S.C. § 2412.
(See Petition, ECF #39 at 10-11, Pg. ID 905-06.) The Commissioner filed a
Response in opposition to the Petition on December 9, 2015. (ECF #40.) For the
reasons stated below, the Court GRANTS IN PART the Petition (ECF #39).
RELEVANT PROCEDURAL HISTORY
The Court included a detailed recitation of the relevant procedural history in
its August 31 Order. (See ECF #37 at 2-3, Pg. ID 886-87.) The Court incorporates
that recitation and sets forth the additional background that is relevant to the
Petition.
On September 17, 2012, the ALJ found that Sparr was not disabled within
the meaning of the Social Security Act, and thus not entitled to benefits. (See
ALJ’s Decision, ECF #14-2 at 20-31, Pg. ID 73-84.)

Specifically, the ALJ

concluded that (1) Sparr’s impairments did not meet or medically equal the criteria
of Listing 12.06 (anxiety-related disorders) (see id. at 24, Pg. ID 77), and (2) Sparr
had the residual functional capacity (“RFC”) to perform light, indoor work and that

2

there are jobs that exist in significant numbers in the national economy that she can
perform (see id. at 24-31, Pg. ID 77-84). The ALJ further concluded that “the
record contains no evidence that [Sparr] is completely unable to function
independently outside the area of her home.” (See id. at 24, Pg. ID 77.) After the
Appeals Council denied Sparr’s request to review the ALJ’s Decision (see Admin.
R., ECF #14-2 at 8, Pg. ID 60), Sparr filed this action, and the assigned Magistrate
Judge later recommended in the R&R that this Court affirm the ALJ’s findings.
(See ECF #34.)
The Court rejected the R&R on two main grounds.

First, the Court

determined that the ALJ was factually incorrect when he stated that there was “no
evidence” showing that Sparr was completely unable to function independently
outside of her home.1 (See August 31 Order, ECF #37 at 5-6, Pg. ID 889-90.)
Second, the Court rejected the ALJ’s RFC determination because he failed to
consider evidence that Sparr is unable to function independently outside of her
home. (See August 31 Order, ECF #37 at 9, Pg. ID 893.) Accordingly, the Court
concluded that the ALJ’s Decision was not supported by substantial evidence and
remanded this action for further fact finding and analysis. (See id.)

1

The August 31 Order includes a detailed summary of the evidence showing that
Sparr was completely unable to function independently outside of her home. (See
ECF #37 at 5-7, Pg. ID 889-91.)

3

Sparr now seeks attorney fees on the basis that the Commissioner’s denial of
benefits was not substantially justified. (See Petition, ECF #39 at ¶6, Pg. ID 2-3.)
The Commissioner responds that, notwithstanding the August 31 Order, “the fact
that the government did not prevail ‘raises no presumption that its position lacked
substantial justification.’”

(See Def.’s Response, ECF #40 at 3, Pg. ID 987

(quoting United States v. Real Prop. Located at 2323 Chars Rd., 946 F.2d 437, 440
(6th Cir. 1991).)
GOVERNING LEGAL STANDARD
Under the EAJA, a prevailing party in an action against the Commissioner is
permitted to recover attorney fees. See 28 U.S.C. § 2412(b) (“[A] court may award
reasonable fees and expenses of attorneys . . . to the prevailing party in any civil
action brought by or against the United States . . . .”). A social security claimant
who wins a remand pursuant to sentence four of 42 U.S.C. § 405(g)2 is a prevailing
party for the purposes of the EAJA. See Shalala v. Schaefer, 509 U.S. 292, 300-01
(1993).
The EAJA “requires the payment of fees and expenses to the prevailing
party in an action against the United States, unless the position of the United States
was substantially justified.” Howard v. Barnhart 376 F.3d 551, 553 (6th Cir.

2

Sentence four of the statute reads “The court shall have the power to enter, upon
the pleadings and transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.” 42 U.S.C. § 405(g).

4

2004) (citing 28 U.S.C. § 2412(d)(1)(A)). The Commissioner bears the burden of
establishing that its position was substantially justified. See DeLong v. Comm’r of
Soc. Sec., 748 F.3d 723, 725-26 (6th Cir. 2014).

To meet this burden, the

Commissioner must demonstrate that its position had “‘a reasonable basis both in
law and fact.’” Howard, 376 F.3d at 553 (quoting Pierce v. Underwood, 487 U.S.
552, 565 (1988)).
ANALYSIS
Sparr is a prevailing party under the EAJA because the Court granted her
request to remand this action pursuant to sentence four of 42 U.S.C. § 405(g). See
Shalala, 509 U.S. at 300-01. Sparr is therefore entitled to attorney fees unless the
Commissioner can show that its denial of benefits is “substantially justified despite
remand.” Glenn v. Comm’r of Soc. Sec., 763 F.3d 494, 498 (6th Cir. 2014) (citing
DeLong, 748 F.3d at 727). The Commissioner cannot do so.
A.

The Lack of Substantial Justification
There is no reasonable basis in fact – and therefore no substantial

justification – supporting the ALJ’s conclusion that “the record contains no
evidence that [Sparr] is completely unable to function independently outside the
area of her home.” (See ALJ’s Decision, ECF #14-2 at 24, Pg. ID 77 (emphasis
added).) In fact, the Administrative Record shows just the opposite. As the Court
noted in its August 31 Order:

5

The administrative record does contain evidence that Sparr is
completely unable to function independently outside her home.
For instance, at an administrative hearing before the ALJ in 2012,
Sparr testified that she has “never left [her] home by [her]self
since 2005.” (ECF #14-2 at 65, Pg. ID 118.) Similarly, in 2007,
Sparr told a psychologist that she “cannot go anywhere by herself
without having acute anxiety” and that she “ha[s] to have
someone with [her] at all times.” (ECF #14-7 at 466, Pg. ID 524.)
At around the same time, Sparr told a counselor that she had a
panic attack when her husband left her alone at Walmart. (See id.
at 450, Pg. ID 508.) Moreover, Sparr’s statements about her
inability to function independently outside of her home are
consistent with her therapist’s comment on December 4, 2009,
that Sparr’s “husband still needs to be present in . . . sessions in
order for her to feel safe” (id. at 596, Pg. ID 654) and with
numerous other references in Sparr’s medical record to her
husband accompanying her to medical appointments. (See id. at
536, 541, 637; Pg. ID 594, 599, 695.) The ALJ failed to
acknowledge this countervailing evidence in reaching his
conclusion that “the record contains no evidence” that Sparr could
not
function
independently
outside
her
home.
(ECF #37 at 5-6, Pg. ID 889-90.) Moreover, as the Court further concluded, the
ALJ “reached his conclusion [that Sparr could function independently outside of
her home] without . . . performing any meaningful analysis.” (See id. at 8, Pg. ID
892.)
The Commissioner concedes that “the ALJ did not adequately explain his
finding about Listing 12.06C,” but asserts that “‘an ALJ’s failure to provide an
adequate explanation for his findings does not establish that a denial of benefits
lacked substantial justification.’” (Def.’s Response, ECF #40 at 5, Pg. ID 989
(quoting DeLong, 748 F.3d at 727).) The Commissioner is correct that an ALJ’s

6

inadequate explanation does not, by itself, establish that the denial of benefits
lacked substantial justification. See Glenn, 763 F.3d at 500. But when an ALJ
fails to provide an adequate explanation for a conclusion and “selectively
considered the evidence in denying benefits,” then “the Commissioner’s decision
to defend the administrative law judge’s denial of benefits is without substantial
justification.” See Howard, 376 F.3d at 554. That is precisely what happened
here.
The Court has already determined that the ALJ selectively considered
evidence in denying benefits. Specifically, the Court found that the ALJ supported
his conclusion that Sparr is not disabled “with a single citation to a medical record
from Sparr’s visit to her therapist on December 8, 2009.” (August 31 Order, ECF
#37 at 6, Pg. ID 890.) But the therapist’s note establishes only that Sparr was able
to “attend the session” alone. (ECF #14-7 at 198, Pg. ID 653.) It does not
establish that Sparr left her home by herself and traveled to the office alone.
Moreover, the ALJ overlooked Sparr’s testimony that she could not function
independently outside of her home.

The ALJ’s blanket statements that he

evaluated the Administrative Record as a whole (see, e.g., ALJ’s Decision, ECF
#14-2 at 26, Pg. ID 78) is not sufficient to establish that the Commissioner had a
substantial justification – especially in the absence of an adequate explanation for
his conclusions.

7

B.

Attorney Fees: Hours Worked and Hourly Rate
The EAJA provides, in pertinent part, that “attorney fees shall not be

awarded in excess of $125 per hour unless the court determines that an increase in
the cost of living or a special factor . . . justifies a higher fee.” 28 U.S.C. §
2412(d)(2)(A). The plaintiff bears the burden of proving that the hours worked
and the fees requested are reasonable. See Fisher v. Comm’r of Soc. Sec., No. 1413881, 2015 WL 4944385, at *2 (E.D. Mich. Aug. 19, 2015). The plaintiff also
bears the burden of establishing that a higher fee is appropriate if seeking an
upward adjustment.

See Bryant v. Comm’r of Soc. Sec., 578 F.3d 443, 450 (6th

Cir. 2009).
Sparr submitted with her Petition a time sheet establishing that her attorneys
spent 45.18 hours working on this case between February 21, 2014, and September
1, 2015. (See Pl.’s Ex. B, ECF #39-3 at 1, Pg. ID 912.) In response to this
documentary evidence, the Commissioner has made only a conclusory argument
“out of an abundance of caution . . . that Plaintiff has not sustained her burden of
establishing that [] the number of hours” is proper. (Def.’s Response, ECF #40 at
6, Pg. ID 990.) The Court rejects the Commissioner’s argument and concludes that
Sparr’s attorneys did not spend “excessive, redundant, or otherwise unnecessary”
hours preparing for this case. See Fisher, 2015 WL 4944385, at *2.

8

Sparr requests that this Court award her attorney fees at an hourly rate of
$184.50 for attorney work performed in 2014 and 2015. (See Petition, ECF #39 at
¶10, Pg. ID 900.) To support this hourly rate, Sparr submitted to the Court: (1) the
Consumer Price Index (the “CPI”) Data for Detroit-Ann Arbor-Flint as of October
2015, (2) the State Bar of Michigan 2007 Economics of Law Practice Summary
Report, (3) affidavits from attorneys Blaise A. Repasky, David A. Sims, Michael
Trager, Evan Zagoria, and non-attorney representative Dannelly C. Smith
regarding attorney fees, and (4) the State Bar of Michigan Attorney Income and
Billing Rate. (See Pl.’s List of Exhibits, ECF #39-1 at 1, Pg. ID 908.)
This Court has held previously that the evidence Sparr submitted is not
sufficient to support an upward adjustment in the amount requested by Sparr. In
Fisher, the plaintiff sought $200.00 per hour in attorney fees and relied on
evidence nearly identical to the evidence submitted by Sparr – including virtually
the same affidavits from the same attorneys and non-attorney representative. The
Court concluded that this evidence did not accurately capture the going rate for
attorneys handling social security disputes in the relevant market and declined to
grant the full requested upward adjustment. See Fisher, 2015 WL 4944385, at *35. Instead, the Court awarded fees at an hourly rate of $150.00.
The Court’s conclusion in Fisher applies with equal force to Sparr’s Petition
and the Court therefore declines to award fees at an hourly rate of $184.50. But, as

9

in Fisher, the Court also recognizes that the $125.00 statutory cap does not
adequately compensate Sparr’s attorneys under the circumstances of this case. In
line with Fisher and other persuasive decisions from this Court and within this
Circuit, this Court awards attorney fees at an hourly rate of $150.00. See, e.g., id.
at *5; Vock v. Comm’r of Soc. Sec., No. 13-cv-12753, 2014 WL 6974663, at *5
(E.D. Mich. Dec. 9, 2014); see also Shumaker v. Comm’r of Soc. Sec., 2013 WL
6501300, at *3 (N.D. Ohio Dec. 11, 2013). Accordingly, the Court will award
Sparr attorney fees at an hourly rate of $150.00 for 45.18 hours of attorney work3
on this case, for a total amount of $6,777.00.
CONCLUSION
For the reasons stated above, IT IS HEREBY ORDERED that Sparr’s
Petition (ECF #39) is GRANTED IN PART. The Commissioner shall pay Sparr
$6,777.00 in attorney fees.
IT IS SO ORDERED.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: December 23, 2015

3

The Court denies Sparr’s request for paralegal fees.
10

I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on December 23, 2015, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

11