Campanaro v. Social Security
Filing
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OPINION AND ORDER Adopting 26 Report and Recommendation re 22 Motion for Attorney Fees. Signed by District Judge Laurie J. Michelson. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MELISSA CAMPANARO,
Plaintiff,
v.
Case No. 14-12876
Honorable Laurie J. Michelson
Magistrate Judge Elizabeth A. Stafford
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [26] TO GRANT IN PART
PLAINTIFF’S APPLICATION FOR ATTORNEY’S FEES [22]
Melissa Campanaro’s attorney, Matthew Taylor, filed a petition for attorney’s fees under
the Social Security Act, 42 U.S.C. § 406(b), after Campanaro was awarded past-due benefits (ECF
No. 22). The Court referred the motion to Magistrate Judge Elizabeth A. Stafford who issued a
Report and Recommendation that Taylor’s motion be granted in part, reducing the fee amount by
$3,468.75—the amount Taylor could have been awarded under the Equal Access to Justice Act
had he sought those fees. Taylor now objects on the ground that he did not have a good faith basis
for seeking EAJA fees.
EAJA fees are awarded to the “prevailing party” unless “the court finds that the position
of the United States was substantially justified.” 28 U.S.C. §2412(d)(1)(A). EAJA fees can
increase a successful claimant’s portion of past-due benefits because the “claimant’s attorney must
refun[d] to the claimant” the smaller of the two fee awards (under EAJA and 42 U.S.C. § 406(b)).
Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002). Otherwise, the attorney’s fees are taken out of
the claimant’s award. Minor v. Comm’r of Soc. Sec’y, 826 F.3d 878, 881 (6th Cir. 2016). “If the
attorney could have received EAJA fees but failed to apply for them, it is unfair to make the
plaintiff bear the burden of this error.” Iliceto v. Sec’y of Dep’t of Health & Human Servs., No.
CV-83-2160, 1990 WL 186254, at *1 (E.D.N.Y. Nov. 14, 1990).
While “[r]emand ‘alone,’ which occurs when the ALJ’s decision was not ‘supported by
substantial evidence,’ does not necessarily require an award of fees because the remand standard
is not the equivalent of a finding that the government’s position was not substantially justified,”
Glenn v. Comm’r of Soc. Sec’y, 763 F.3d 494, 498 (6th Cir. 2014) (quoting Couch v. Sec’y of
Health and Human Servs., 749 F.2d 359, 360 (6th Cir.1984)), it can hardly be said that Taylor did
not have a “credible argument” to move for EAJA fees in this case, see Iliceto, 1990 WL 186254,
at *1. The Magistrate Judge, in issuing a prior Report and Recommendation on the merits, which
was later adopted by the Court, used strong language in finding that the ALJ disregarded and
mischaracterized the record. (See ECF No. 19.) The Magistrate Judge found that the ALJ “grossly
misstated and under-represented the medical evidence,” “minimized” Campanaro’s emergency
room visits, and “played doctor” when evaluating medical evidence without an accompanying
medical opinion. (See id.) Given the strong basis for remand, Taylor had a credible argument to
move for EAJA fees. The Court sees no error in the Magistrate Judge’s fee reduction.
So Taylor’s objection is OVERULED. The Court ADOPTS the Magistrate Judge’s Report
and Recommendation (ECF No. 26) GRANTING IN PART Taylor’s application for attorney’s
fees (ECF No. 22). Taylor is awarded $2,281.25.
IT IS SO ORDERED.
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
Date: August 20, 2019
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CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing document was served on the
attorneys and/or parties of record by electronic means or U.S. Mail on August 20, 2019.
s/William Barkholz
Case Manager to
Honorable Laurie J. Michelson
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