Gushen v. Commissioner of Social Security

Filing 41

OPINION AND ORDER Denying Plaintiff's 35 , 38 and 39 Petitions for Attorney Fees. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PATRICK GUSHEN,
Plaintiff,

Case No. 16-cv-10003
Hon. Matthew F. Leitman

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_________________________________/
OPINION AND ORDER DENYING PLAINTIFF’S
PETITIONS FOR ATTORNEY FEES (ECF ## 35, 38, 39)
In March of 2014, the Social Security Administration (the “SSA”) denied
Plaintiff Patrick Gushen’s applications for disability benefits. Gushen challenged
the denial of benefits in this Court. On February 23, 2017, the Court (1) ruled in
favor of Gushen on the ground that the Commissioner of Social Security (the
“Commissioner”) failed to make certain required findings and (2) remanded the case
to the Commissioner for further proceedings.
Gushen has now petitioned the Court for his attorney fees under the Equal
Access to Justice Act (the “EAJA” or “Act”), 28 U.S.C. § 2412. (See ECF ## 32, 35,
38, 39) As explained below, the Court concludes that Gushen is not entitled to an
award of attorney fees under the Act.

1

I
A
On November 7, 2013, and July 9, 2014, respectively, Gushen filed
applications for Social Security disability insurance benefits and supplemental
security income (the “Applications”) with the SSA. (See Admin. R., ECF #13-5 at
Pg. ID 186, 200.) On March 28, 2014, the SSA denied the Applications on the
ground that Gushen was not disabled. (See Admin. R., ECF #13-4 at Pg. ID 122125.)
Gushen then filed a written request for a hearing before an Administrative
Law Judge (an “ALJ”). (See id. at Pg. ID 141-152.) Before the hearing, Gushen
submitted a memorandum in which he argued that he was disabled and entitled to
benefits because “he suffers from a somatoform disorder” as defined in Listing 12.07
of the Commissioner’s Listing of Impairments (“Listing 12.07”). (See id. at Pg. ID
179-182.) At the June 17, 2015, hearing, Gushen’s attorney reiterated to the ALJ
that Gushen “meets [L]isting 12.07.” (ECF #13-2 at Pg. ID 77.)
On September 4, 2015, the ALJ issued a written decision denying Gushen’s
claim for benefits. (See id. at Pg. ID 55-66.) In that decision, the ALJ discussed only
whether Gushen’s condition satisfied Listing 12.04 (titled “Affective Disorders”)
and Listing 12.06 (titled “Anxiety-related Disorders”). (See id.) The ALJ did not

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address whether Gushen’s condition satisfied Listing 12.07 even though Gushen
twice brought this listing to the ALJ’s attention. The ALJ ultimately concluded that
Gushen was not disabled because “there are jobs that exist in significant numbers in
the national economy that [Gushen] can perform.” (Id. at Pg. ID 65.)
B
On January 3, 2016, Gushen filed this action challenging the SSA’s denial of
benefits. (See Compl., ECF #1.) Gushen and the Commissioner then filed crossmotions for summary judgment. (See Pl.’s Mot. Summ. J., ECF #15; Def.’s Mot.
Summ. J., ECF #19.)

The Court referred the cross-motions to the assigned

Magistrate Judge.
The cross-motions raised a number of issues, but the Magistrate Judge invited
the parties to narrow the issues prior to oral argument. (See Report and
Recommendation, ECF #21 at Pg. ID 610-611.) Gushen’s counsel then notified the
Magistrate Judge that Gushen wished to proceed solely on his claim that the ALJ
committed a reversible error by failing to consider whether his impairments met
Listing 12.07. (See ECF #24 at Pg. ID 601.)

In response to this claim, the

Commissioner conceded that the ALJ erred by failing to consider whether Gushen
suffered from a somatoform disorder. (See Report and Recommendation, ECF #25
at Pg. ID 613.) The Commissioner nonetheless argued that this Court should affirm
the denial of benefits on the ground that the ALJ’s error was harmless.

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On December 29, 2016, the Magistrate Judge issued a Report and
Recommendation (the “R&R”) in which he recommended that the Court grant the
Commissioner’s motion and deny Gushen’s motion. (See ECF #25.) In the R&R,
the Magistrate Judge agreed with the Commissioner’s harmless error argument.
Specifically, the Magistrate Judge agreed with the Commissioner that when the ALJ
provided a well-supported explanation for why Gushen’s impairments did not satisfy
Listings 12.04 and 12.06, the ALJ had effectively decided that Gushen’s
impairments did not satisfy Listing 12.07. (See id. at Pg. ID 620-21.) The Magistrate
Judge reasoned that because Paragraph B of Listing 12.07 was identical to Paragraph
B of Listings 12.04 and 12.06, the ALJ’s “Paragraph B findings regarding Listings
12.04 and 12.06 may be reasonably extrapolated to encompass what the ALJ would
have concluded in analyzing the same factors under Listing 12.07.” (Id.) Thus, while
the Magistrate Judge “agreed with [Gushen] that the ALJ erred by inexplicably
failing to discuss Listing 12.07,” he ultimately concurred with the Commissioner
that the ALJ’s error was “harmless.” (Id.)
C
Gushen then filed an objection to the R&R (the “Objection”). (See ECF #26.)
Gushen objected solely “to the finding of the Magistrate Judge that the ALJ’s failure
to address Listing 12.07 was harmless error.” (Id. at Pg. ID 627.) On February 23,
2017, the Court issued an Opinion and Order (the “Remand Order”) in which it

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sustained the Objection, granted Gushen’s motion for summary judgment, and
remanded the case to the Commissioner for further proceedings. (See Remand Order
at 18, ECF #30 at Pg. ID 666.)
In the Remand Order, the Court concluded that the ALJ’s failure to address
Listing 12.07 was not “harmless” because “SSA regulations make clear that the
application of Paragraph B in Listing 12.07 will not always mirror the application of
Paragraph B of Listings 12.04 and 12.06.” (Id. at Pg. ID 660.) The Court’s
conclusion rested primarily on a regulation that neither Gushen nor the
Commissioner cited in their briefs – namely, 20 C.F.R. § 404, Subpt. P, App. 1,
Listing 12.00(A) (“Listing 12.00(A)”). (See id.) This introductory listing addresses
how the SSA must apply Paragraph B in, among other things, Listings 12.04, 12.06,
and 12.07. It provides:
The criteria in paragraphs B and C describe impairmentrelated functional limitations that are incompatible with
the ability to do gainful activity. The functional
limitations in paragraphs B and C must be the result of the
mental disorder described in the diagnostic description
that is manifested by the medical findings in paragraph A.
20 C.F.R. § 404, Subpt. P, App. 1, Listing 12.00(A) (emphasis added). The Court
interpreted Listing 12.00(A) to require “the SSA to consider the Paragraph B
functional limitations for each listing in light of the specific mental disorder in
Paragraph A of that listing.” (Id.; emphasis added.)

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The Court then identified important differences between the functional
limitations that result from somatoform disorders (Listing 12.07) and the functional
limitations that result from affective disorders or anxiety-related disorders (Listings
12.04 and 12.06). (See id. at 661-662.) The Court analyzed the ALJ’s written
decision in light of these differences and concluded that “ALJ’s consideration of the
Paragraph B functional limitations for affective disorders and anxiety-related
disorders [was] not necessarily a fair substitute for an independent consideration of
whether Gushen’s somatoform disorder satisfied the Paragraph B functional
limitations criteria in Listing 12.07.” (Id. at 662-664.) Thus, the Court held that the
ALJ’s failure to consider Listing 12.07 was not “harmless.” (Id.) Accordingly, the
Court granted Gushen’s motion for summary judgment and remanded the case to the
Commissioner for further proceedings. (See id. at Pg. ID 666.)
D
After the Court ruled in Gushen’s favor, he petitioned the Court for attorney
fees under the EAJA. (See ECF #32.) The Commissioner objected to Gushen’s
petition on April 6, 2017. (See ECF #33.) Gushen replied to the Commissioner’s
objection on April 20, 2017. (See ECF #34.) He also amended his petition to add
fees for the time his attorney spent defending the petition.1 (See “Amended Petition
for Attorney Fees,” ECF #35.)

1

Gushen erroneously labeled this filing “Amended Motion for Attorney Fees.”
6

On July 12, 2017, the Court held a telephonic hearing on Gushen’s petition.
During the telephonic hearing, the Court ordered Gushen and the Commissioner to
file supplemental briefing addressing whether an award of fees under the EAJA is
appropriate where the Commissioner’s position during the administrative hearing
was not substantially justified but where the Commissioner’s later position in federal
court was substantially justified.

On August 11, 2017, Gushen and the

Commissioner filed their supplemental briefs.2 (See ECF #39, 40.) Gushen also
amended his petition again to reflect the additional time his attorney spent drafting
the supplemental brief. (See “Third Petition for Attorney Fees,” ECF #38.) He
requests a total of $7,862.50 for 62.9 hours of work. (See id. at Pg. ID 729.)
II
A
“The purpose of the EAJA is to remove financial obstacles to challenging
unreasonable government action.” Minor v. Commissioner of Social Security, 826
F.3d 878, 881 (6th Cir. 2016). “Under the EAJA, ‘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.” Glenn v. Commissioner of Social

2

Gushen erroneously labeled his supplemental brief “Motion EAJA Fees.” (See
ECF #39.)

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Security., 763 F.3d 494, 498 (6th Cir. 2014) (quoting 28 U.S.C. §2412(d)(1)(A) and
DeLong v. Commissioner of Social Security, 748 F.3d 723, 725 (6th Cir. 2014)).
Here, the Commissioner does not dispute that Gushen is the prevailing party.
(See ECF #33.) The Commissioner also does not claim that there are special
circumstances that warrant denying Gushen attorney fees. (See id.) Thus, Gushen is
entitled to attorney fees unless the Government’s position was “substantially
justified.” 28 U.S.C. § 2412(d).
B
“The Government bears the burden of proving that a given position was
substantially justified.” DeLong, 748 F.3d at 725.

To meet this burden, the

Commissioner must demonstrate that her position was “justified to a degree that
could satisfy a reasonable person” and that her position had “a reasonable basis both
in law and fact.” Glenn, 763 F.3d at 498 (quoting Pierce v. Underwood, 487 U.S.
552, 565 (1988)) (internal quotation marks omitted). The “Commissioner’s position
may be substantially justified even if a district court rejects it.” DeLong, 748 F.3d at
725.
In reviewing whether the Commissioner’s position “was substantially
justified,” the Court considers both “the position taken by the United States in the
civil action [and] the action or failure to act by the agency upon which the civil action
is based.” 28 U.S.C. § 2412(d)(2). The Court then makes a single determination of

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whether the Government’s position “as a whole" was substantially justified.
Amezola-Garcia v. Lynch, 835 F.3d 553,555 (6th Cir. 2016) (quoting E.E.O.C. v.
Memphis Health Ctr., Inc., 526 Fed. App’x. 607, 615 (6th Cir. 2013)). Critically,
the Government’s position “as a whole” can be substantially justified even if the
Government’s actions at the agency level were not substantially justified. See id.
C
Although there was little justification for the ALJ’s failure to analyze
Gushen’s condition under Listing 12.07, the Court finds that the Commissioner’s
position as a whole was substantially justified because the Commissioner’s position
in this Court was eminently reasonable and because the ALJ’s error was procedural
rather than substantive. The Sixth Circuit’s decisions in Amezola-Garcia and
DeLong, supra, are instructive in this regard.
In Amezola-Garcia, a Mexican citizen filed a petition challenging a final order
of removal entered by the Board of Immigration Appeals (“BIA”). See AmezolaGarcia, 835 F.3d at 554. The petitioner argued that the BIA made several errors.
See id. In the Sixth Circuit, the Government “opposed most of [the] petition, but it
did concede error with respect to one issue. Id. “In light of the Government’s
concession, [the Sixth Circuit] remanded [for further proceedings on the issue that
was the subject of the concession and] held that the remainder of [the] petition was
without merit.” Id. The petitioner then sought fees under the EAJA. See id. The

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Sixth Circuit denied the fee request on the ground that the Government’s position
was “substantially justified.” Id. Critically, the Sixth Circuit assumed that the
Government’s “pre-litigation position” (i.e. its position at the agency level) on the
issue that was the subject of the remand “was not justified,” id. at 555 (emphasis
added), but the court nonetheless concluded that the Government’s position “as a
whole” was substantially justified. Id. at 555-56. The court reached this conclusion
because, among other things, (1) “the Government’s litigation position before this
Court was entirely justified” and (2) the Government “conceded” that it had
committed an error at the administrative level. Id.
This case has important parallels to Amezola-Garcia. Most significantly, like
the Government in that case, the Commissioner advanced a litigation position in this
Court that was entirely justified.

Indeed, the Commissioner’s harmless error

argument in this Court – specifically, that when the ALJ explained why Gushen’s
impairments did not satisfy Listings 12.04 and 12.06, the ALJ had effectively
decided that Gushen’s impairments did not satisfy Listing 12.07 – had been endorsed
(albeit in dicta) by two district courts.3 And neither the Court in the Remand Order,

3

See Pizarro v. Colvin, 2015 WL 1276699, at *5-6 (C.D. Cal. March 19, 2015);
Henningsen v. Astrue, 2013 WL 791771, at *18-19 (D. Minn. Feb 13, 2013). Indeed,
the Commissioner’s citation to Pizarro was the only instance in which either party
cited case law that directly addressed the central issue before the Court – whether an
ALJ’s failure to evaluate a claimant’s condition under one neurological listing is
merely “harmless error” if that ALJ concluded that the claimant did not satisfy
identical Paragraph B functional limitations requirements in another neurological
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nor Gushen in his briefs, was able to identify a single federal case that was directly
contrary to the Commissioner’s position.4 Thus, the legal issue was a novel and
challenging one, and the Commissioner was entirely justified in advancing her
“harmless error” argument. See United States v. Certain Land Situated in City of
Detroit, 600 F. Supp. 2d 880, 897 (E.D. Mich. 2009) (“If 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, 961-62 (3d Cir. 1985)).
Moreover, like the Government in Amezola-Garcia, the Commissioner conceded
that the ALJ erred during the administrative proceedings. Thus, Amezola-Garcia
strongly supports the Commissioner’s argument that her position “as a whole” was
substantially justified.

listing. The district courts in Pizzaro and Henningsen agreed with the
Commissioner that the Paragraph B functional limitations analysis in Listings 12.04
and 12.06 always mirrors the Paragraph B functional limitations analysis in Listing
12.07. Id. The Court declined to follow the reasoning of Pizzaro and Henningsen
because these decisions do not appear to have accounted for the language in Listing
12.00(A). (See Remand Order, ECF #30 at Pg. ID 662 n. 5.)
4

In the Remand Order, the Court cited Strickland v. Colvin, 2016 WL 1270633, *6
(N.D. Ala. March 31, 2016), to explain how the functional limitations that result
from a somatoform disorder may differ from functional limitations that result from
affective or anxiety-related disorders. (See Remand Order, ECF #30 at Pg. ID 66162.) However, the court in Strickland did not consider the “harmless error” argument
advanced by the Commissioner in this case, and thus was not directly contrary to
that argument.
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The Sixth Circuit’s decision in DeLong further weighs against an award of
attorney fees here. The court in DeLong affirmed a denial of fees under the EAJA
where the district court “vacated the ALJ’s decision and remanded [the] case based
on [a] procedural error rather than on substantive grounds.” DeLong, 748 F.3d at
727. The court explained:
[R]emand on procedural grounds may result in yet another
denial of benefits, and we might well sustain such a denial
on appeal. Accordingly, we hold that an ALJ's failure to
provide an adequate explanation for his findings does not
establish that a denial of benefits lacked substantial
justification. A fully justified position may be poorly
explained, and remand may be the most appropriate
vehicle for elucidating that position. Thus, although
remand on any ground theoretically may support an award
of fees under the EAJA, such an award is not appropriate
when nothing about the specific remand at issue implies a
lack of substantial justification.
Id. (emphasis added).
Similarly in this case, the Court’s Remand Order did not find that the ALJ’s
ultimate conclusion to deny Gushen benefits was substantively unjustified. Rather,
the Court remanded the case because the ALJ committed a procedural error – he
failed to address whether Gushen’s impairments meet Listing 12.07. Although this
procedural error was not harmless – because there was a possibility that Gushen
might be found disabled under Listing 12.07 despite not being found disabled under
Listing 12.04 and 12.06 – the ALJ’s analysis on remand might still “result in yet
another denial of benefits, and [the Court] might well sustain such a denial on
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appeal.” Id. Thus, as in DeLong, the Commissioner’s position “as a whole” did not
lack substantial justification simply because the ALJ committed a procedural error
at the agency level.5
Finally, Gushen has not cited a single case in which a court awarded fees
under the EAJA where the Commissioner advanced a well-reasoned (but ultimately
unsuccessful) harmless error argument. Gushen’s failure to do so is significant
because the Court directly asked his counsel to provide the Court with such cases
during the July 12, 2017, telephonic hearing. Given the Sixth Circuit’s opinions in
Amezola-Garcia and DeLong, and Gushen’s inability to cite any authority to the
contrary, the Court finds that the Commissioner’s position “as a whole” was
substantially justified and that an award of attorney fees under the EAJA would
therefore be inappropriate.

5

The Court error in DeLong was not identical to the ALJ’s error in this case. In
DeLong, the ALJ “fail[ed] to explain his findings adequately.” DeLong, 742 F.3d at
727 (emphasis added). In contrast, the ALJ in this case did not simply fail to explain
himself. He committed the more serious error of failing even to consider whether
Gushen’s conditions satisfied Listing 12.07. But the ALJ’s error was nonetheless
procedural, and despite the error, the denial of benefits may ultimately prove to be
substantively justified.
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III
For the reasons stated above, IT IS HEREBY ORDERED that Gushen’s
Amended Petition for Attorney Fees (ECF #35) and Third Petition for Attorney Fees
(ECF #38) are DENIED. In addition, Gushen’s supplemental brief (ECF #39),
which was erroneously filed as a separate motion, is DENIED.
IT IS SO ORDERED.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

Dated: August 15, 2017

I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on August 15, 2017, by electronic means and/or ordinary
mail.
s/ Holly A. Monda
Case Manager
[phone]

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