Chene v. Colvin

Filing 30

ORDER DENYING Plaintiff's 28 Motion for Attorney Fees--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CAROL CHENE,
Plaintiff,

Case No. 2:15-cv-10576
Magistrate Judge Anthony P. Patti

v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
___________________________________/
ORDER DENYING PLAINTIFF’S MOTION FOR AWARD OF
ATTORNEY’S FEES (28)
This matter is before me for consideration of Plaintiff’s motion for
attorney’s fees (DE 27) and Defendant’s response in opposition (DE 28).1 For the
reasons that follow, Plaintiff’s motion is DENIED.
A.

Procedural Background

Plaintiff protectively filed her applications for social security disability
benefits and supplemental security income on December 2, 2010, alleging that she
had been disabled since June 1, 2004. (R. at 147-152, 153-157, see also R. at 54.)
Plaintiff’s applications were denied and she sought a de novo hearing before an
Administrative Law Judge (“ALJ”). ALJ Jerome B. Blum held a hearing on April

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On November 9, 2015, the parties consented to my jurisdiction pursuant to
28 U.S.C. § 636(c). (DE 17.)

3, 2012 and subsequently determined that Plaintiff was not disabled within the
meaning of the Social Security Act. (R. at 42-77.) On March 19, 2013, the
Appeals Council remanded the case to the ALJ. (R. at 78-81.) ALJ Blum held a
second hearing on July 23, 2013 and subsequently determined that Plaintiff was
not disabled. (R. at 28-41, 9-23.) On December 30, 2014, the Appeals Council
denied Plaintiff’s request for review. (R. at 1-5.)
Plaintiff then timely commenced the instant action in federal court. In her
motion for summary judgment, she set forth three statements of error: 1) that the
ALJ’s residual functional capacity (“RFC”) assessment was not supported by
substantial evidence; 2) that the ALJ violated the procedural aspect of the treating
physician rule in evaluating the medical source opinion of Dr. Peter Smith; and 3)
that the ALJ failed to make a credibility determination as required by SSR 96-7p.
The Commissioner opposed Plaintiff’s motion, asserting that the ALJ’s decision
was supported by substantial evidence.
On September 23, 2016, the Court remanded the matter back to the
Commissioner for further administrative proceedings pursuant to Sentence Four of
42 U.S.C. § 405(g) based on Plaintiff’s second argument. (DE 23.) Specifically, I
concluded that the weight the ALJ assigned to treating physician Dr. Peter Smith’s
June 21, 2013 mental RFC assessment was unclear. As to her first argument, I
noted that the ALJ’s credibility finding was supported by substantial evidence and

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sufficiently clear. As to her third argument, I concluded that she had not illustrated
how she required a more restrictive limitation than that included in the ALJ’s Step
4 determination. However, I noted that the RFC finding was subject to
reconsideration in light of the treating physician rule error.
B.

The Instant Motion

In the instant motion, Plaintiff seeks costs and attorney fees under the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, because the Court remanded
her case for further administrative proceedings. She asserts that the
Commissioner’s position in opposing his motion for remand was not substantially
justified because the ALJ omitted an assignment of weight as to Dr. Smith’s
opinion. (DE 28 at ¶ 8.)
The Commissioner opposes Plaintiff’s motion and argues that her position
was substantially justified. Specifically, she asserts that a harmless error argument
was reasonable, in light of conflicting case law and no controlling precedent.
C. STANDARD OF REVIEW
The EAJA provides in pertinent part:
[A] court shall award to a prevailing party other than the United States
fees and other expenses, in addition to any costs awarded pursuant to
subsection
(a), incurred by that party in any civil action (other than cases
sounding in tort), including proceedings for judicial review of
agency action, brought by or against the United States in any
court having jurisdiction of that action, unless the court finds
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that the position of the United States was substantially justified
or that special circumstances make an award unjust.
28 U.S.C. § 2412(d). Applying the foregoing authority, an award of fees requires
that 1) the plaintiff was the prevailing party, 2) the government’s position was not
substantially justified, and 3) no special circumstances make an award of fees
unjust.
A party is considered to have prevailed where it has been the victor in a
lawsuit or has “vindicated important rights through a consent judgment.” Citizens
Coal.for Block Grant Compliance, Inc. v. City of Euclid, 717 F. 2d 964, 966 (6th
Cir. 1983) (internal quotations omitted). The court will generally confer
prevailing-party status on a plaintiff who has won a Sentence 4 remand. Sec’y v.
Schaefer, 509 U.S. 292, 300 (1993). Here, neither party disputes Plaintiff’s status
as the prevailing party.
The Commissioner bears the burden of establishing that her position was
substantially justified, which is defined as “justified, both in fact and in law, to a
degree that could satisfy a reasonable person.” Jankovich v. Bowen, 868 F.2d 867,
869 (6th Cir. 1989); see also Noble v. Barnhart, 230 F. App’x 517, 519 (6th
Cir.2007) (“[T]he position of the government will be deemed to be substantially
justified if there is a genuine dispute, or if reasonable people could differ as to the
appropriateness of the contested action.”). “However, the fact that the
Commissioner’s decision was found to be supported by less than substantial
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evidence ‘does not mean that it was not substantially justified.’” Hutchinson v.
Comm’r of Soc. Sec., No. 12-CV-11337, 2014 WL 2050859, at *4 (E.D. Mich.
May 17, 2014) (quoting Bates v. Callahan, 124 F.3d 196, 196 (6th Cir 1997)).
D. ANALYSIS
The Commissioner has met her burden of establishing that her position was
substantially justified. The issue in this matter was whether the ALJ erred by
failing to state the weight afforded to the opinion of a treating physician.
Specifically, Plaintiff’s treating source, Peter Smith, M.D., opined that she was
precluded from all work. (R. at 330-333.) The ALJ appears to have discounted
this opinion, finding that it was inconsistent with treatment notes and records, but
did not state the level of weight he provided to the opinion. (R. at 18.) The Court
remanded, concluding that this omission did not “permit meaningful review of the
ALJ’s application of the [treating physician] rule.” (DE 23 at 4-5.)
There was no controlling, Sixth Circuit precedent addressing the question of
whether such an omission could ever constitute harmless error. The
Commissioner, therefore, reasonably relied on a factually similar but non-binding
opinion finding harmless error where “the ALJ did not explicitly state the weight
he afforded” to a treating physician opinion. Peterson v. Colvin, No. 1:14-cv00555, 2015 WL 151045, at *9 (N.D. Ohio Jan 12, 2015). That the Court
ultimately relied on the reasoning in a different persuasive case is insufficient to

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demonstrate that the Commissioner’s position was not supported by substantial
evidence. Ballatore v. Comm’r of Soc. Sec., No. 11-15335, 2014 WL 276529, at
*6 (E.D. Mich. June 18, 2014) (‘“The clarity of existing law is an important factor
in determining whether the Commissioner’s position was substantially justified,’
and in this case, the lack of definitive Sixth Circuit law on-point weighs toward
concluding that ‘reasonable people could differ’ as to this point.”) (quoting Spruil
v. Bowen, 691 F. Supp. 302, 306 (M.D. Fla. 1988)); see also United States v.
Certain Land Situated in the City of Detroit, 600 F. Supp. 2d 880, 897 (E.D. Mich.
2009) (‘“[I]f the case turns on an unsettled or ‘close’ question of law, the
government’s position will normally be substantially justified notwithstanding the
fact that its legal position is ultimately rejected.”’) (quoting Washington v. Heckler,
756 F.2d 959, 961 (3rd Cir. 1985)).
Further, the Court should not only look at the issue on which the plaintiff
prevailed when determining whether the government’s position was substantially
justified. E.E.O.C. v. Memphis Health Ctr., Inc., 526 F. App’x 607, 615 (6th Cir.
2013). Here, a review of the case as a whole reveals that the government’s
position was substantially justified. For example, the Court remanded on only one
of Plaintiff’s three statements of error. As noted above, even where the Court
remanded, the law was not settled and the Commissioner relied on non-binding

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case law that supported its position, even if the Court ultimately disagreed with its
reasoning.
Based on the foregoing, the Commissioner has established that her position
was substantially justified. Accordingly, Plaintiff’s motion is DENIED. (DE 28.)
IT IS SO ORDERED.

Dated: March 3, 2017

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

I hereby certify that a copy of the foregoing document was sent to parties of record
on March 3, 2017, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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