Gross v. Colvin

Filing 39

OPINION AND ORDER GRANTING Plaintiff's 35 Motion for Attorney Fees--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KRISTEN JO GROSS,
Plaintiff,

Case No. 2:16-cv-10365
Magistrate Judge Anthony P. Patti

v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
___________________________________/
OPINION AND ORDER GRANTING PLAINTIFF’S APPLICATION FOR
ATTORNEYS’ FEES UNDER THE EAJA (DE 35)
I.

BACKGROUND
A.

Procedural Background

Plaintiff, Kristen Jo Gross, filed her application for disability insurance (DI)
benefits on March 19, 2013, alleging that she has been disabled since February 13,
2013. (R. at 31.) Plaintiff’s application was denied and she sought a de novo
hearing before an Administrative Law Judge (“ALJ”). ALJ Melody Paige held a
hearing on October 30, 2014, and subsequently determined that Plaintiff was not
disabled within the meaning of the Social Security Act. (R. at 31-86.) On
December 19, 2015, the Appeals Council denied Plaintiff’s request for review. (R.
at 1-4.) ALJ Paige’s decision became the Commissioner’s final decision.

Plaintiff then timely commenced the instant action in federal court. In her
motion for remand, she set forth three statements of error: (1) that the ALJ
violated the treating source rule; (2) that the ALJ erred in her consideration of
Plaintiff’s credibility; and (3) that the ALJ erred by relying upon an incomplete
hypothetical to the vocational expert. (DE 17.) The Commissioner opposed
Plaintiff’s motion and filed a motion for summary judgment, asserting that
substantial evidence supports the ALJ’s decision. (DE 20.) Plaintiff filed a reply
brief in support of her motion to remand. (DE 22.) The parties consented to my
authority (DE 13), and a hearing was held on March 17, 2017, at which Plaintiff’s
counsel and Defendant’s counsel appeared by telephone.
On March 28, 2017, the Court issued an Opinion and Order granting
Plaintiff’s motion to remand, denying Defendant’s motion for summary judgment,
and remanding the case to the Commissioner and the ALJ under Sentence Four of
§ 405(g) for further consideration. Gross v. Comm’r of Soc. Sec., 247 F.Supp.3d
824 (E.D. Mich. 2017). While the Court held that the ALJ did not err in
discounting Plaintiff’s credibility, and that Plaintiff waived her argument with
respect to the ALJ’s reliance on the hypothetical to the vocational expert at Step 5,
as to the first issue, it concluded that, although the ALJ did not err in discounting
the opinion of Plaintiff’s treating physician, substantial evidence did not support
the ALJ’s residual functional capacity (RFC) determination because there is
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insufficient support for the ALJ’s findings, and the factual issues have not been
resolved. Gross, 247 F.Supp.3d at 827-830. Specifically, the Court noted that the
ALJ’s RFC assessment must be supported by substantial evidence and not merely
the ALJ’s own medical interpretation of the record. Id. at 829. The ALJ here
formulated the RFC without the benefit of any opinion evidence and instead
“pointed to her own experience as a nurse and implied an expertise beyond that of
an adjudicator.” Id. at 830. The Court explained that this is not a case “where the
medical evidence shows relatively little physical impairment, such that the ALJ
can make a commonsense judgment about Plaintiff’s functional capacity” without
the aid of opinion evidence. Id. Ultimately, the Court concluded that “[t]he RFC
determination in this action is not supported by substantial evidence” and that “[a]
remand is necessary to obtain a proper medical source opinion and for the
redetermination of Plaintiff’s RFC.” Id.
B.

The Instant Motion

In the instant motion, Plaintiff seeks attorney fees under the Equal Access to
Justice Act (EAJA), 28 U.S.C. § 2412, in an amount of $7,7301.71, consisting of
37.9 attorney hours at $187.09/hour ($7090.71) and 8 paralegal hours at $80/hour
($640.00). (DE 35-1 at 3.) In her reply brief, Plaintiff requests an additional two
hours ($374.18) for “time spent drafting this EAJA reply as the Commissioner
threatened all fees,” bringing the total request to $8,104.89. (DE 37 at 7.) In
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support of this request, Plaintiff alleges that Defendant’s position was “not
substantially justified” “because the ALJ played doctor and guessed at Plaintiff’s
RFC without expert guidance.” (DE 35-7 at 3.) In addition, Plaintiff argues that
“the ALJ as a lay person is not qualified to interpret the raw medical data into
functional terms” and that “the ALJ rendered an unsupported physical RFC based
upon his [sic] own lay opinion.” (DE 35-7 at 3-5.)
The Commissioner opposes Plaintiff’s application and argues that her
position was substantially justified for three reasons. First, she contends that she
reasonably relied on the Social Security regulations and the Sixth Circuit’s
decision in Rudd v. Commissioner of Social Security, 531 F. App’x 719 (6th Cir.
2013), which she asserts are inconsistent with Plaintiff’s position that an RFC must
be based on a doctor’s opinion. (DE 36 at 3-6.) Second, she contends that the
Court remanded “for lack of articulation” and “[a]rticulation errors do not result in
EAJA fees.” (Id. at 6.) Third, she asserts that she raised a number of issues, and
the Court found the Commissioner’s position correct on all of these issues but one,
and thus her “litigation position was justified ‘in the main,’ and EAJA fees are not
appropriate.” (Id. at 7.)
Plaintiff filed a reply arguing again that the Commissioner’s position cannot
be substantially justified because the RFC determination relied on the ALJ playing
doctor. (DE 37 at 5.) She further argues that “the formulation of an RFC based
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upon raw medical data could never be an articulation error, because the ALJ[,] as a
lay person, could never on remand correct or further explain as to how raw medical
data translates into functional terms given that they do not have [sic] a medical
degree.” (Id. at 6.) Further, Plaintiff contends that the Sixth Circuit in Glenn v.
Commissioner of Social Security, 763 F.3d 494 (6th Cir. 2014), refuted the
Commissioner’s position that that “the counting of issues should matter.” (Id. at
7.) Plaintiff concludes that “remand was inevitable because the ALJ played doctor
and had no support for an RFC that harmfully rendered Plaintiff not disabled.”
(Id.)
II.

STANDARD OF REVIEW
“In separate provisions, the EAJA allows a prevailing party other than the

United States to recover fees and expenses incurred ‘in any civil action’ brought by
or against the United States, 28 U.S.C. § 2412(d)(1)(A), or in an ‘adversary
adjudication’ conducted by an agency of the United States, 5 U.S.C. § 504.” Tri–
State Steel Const. Co., Inc. v. Herman, 164 F.3d 973, 977 (6th Cir.1999). Plaintiff
filed the instant request pursuant to 28 U.S.C. § 2412, which 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
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agency action, brought by or against the United States in any
court having jurisdiction of that action, unless the court finds
that the position of the United States was substantially justified
or that special circumstances make an award unjust.
28 U.S.C. § 2412(d). A district court has broad discretion when determining
whether fees should be awarded under the EAJA, and its decision will only be
overturned if it abuses its discretion. Pierce v. Underwood, 487 U.S. 552, 559
(1988); Marshall v. Comm’r of Soc. Sec., 444 F.3d 837, 840 (6th Cir. 2006).
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 quotation marks 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. Likewise, the Commissioner does not articulate a basis for
finding that any “special circumstances” would make an award of fees unjust, nor
does the Court so find.
Instead, the parties dispute whether the Commissioner’s position was
“substantially justified.” (DE 35-7 at 2-6; DE 36 at 3-7.) The Commissioner bears
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the burden of establishing that her position was substantially justified. E.W.
Grobbel Sons, Inc. v. NLRB, 176 F.3d 875, 878 (6th Cir. 1999). As the Sixth
Circuit has explained, “[t]he government’s position is substantially justified if it is
justified in substance or in the main—that is, justified to a degree that could satisfy
a reasonable person.” Glenn v. Comm’r of Soc. Sec., 763 F.3d at 494, 498 (6th Cir.
2014). “The Commissioner’s position may be substantially justified even if a
district court rejects it.” DeLong v. Comm’r of Soc. Sec., 748 F.3d 723, 725 (6th
Cir. 2014) (citing Couch v. Sec’y of Health & Human Servs., 749 F.2d 359, 360
(6th Cir. 1984)). Stated otherwise, “the fact that the Commissioner’s decision was
found to be supported by less than substantial evidence ‘does not mean that it was
not substantially justified.’” Hutchinson v. Comm’r of Soc. Sec., No. 12-CV11337, 2014 WL 2050859, at *4 (E.D. Mich. May 17, 2014) (quoting Bates v.
Callahan, 124 F.3d 196, 196 (6th Cir. 1997)). However, “objective indicia such as
a string of losses can be indicative.” Glenn, 763 F. 3d at 498 (citing Pierce, 487
U.S. at 569).
III.

ANALYSIS
A.

Whether the Commissioner’s Position was Substantially Justified

As stated above, the Commissioner bears the burden of establishing that her
position was substantially justified. DeLong, 748 F.3d at 725-726 (citation
omitted). The Government discharges its burden by demonstrating that the
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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)).
1.

“Reasonable reliance” on Rudd

The Commissioner first argues that her position was substantially justified
because she “reasonably relied” on the Sixth Circuit decision in Rudd v.
Commissioner of Social Security, 531 F. Appx 719 (6th Cir. 2013), which the
Commissioner asserts rejected the idea that an RFC must be based on a medical
opinion. (DE 36 at 3-6.) She further argues that the regulations expressly require
the ALJ to evaluate the medical evidence and determine whether a claimant is
disabled, and do not require that the RFC be based on a medical opinion. (DE 36
at 5, citing 20 C.F.R. § 404.1529(c)(3).) Plaintiff responds that the ALJ here
improperly “played doctor” and guessed at Plaintiff’s RFC without expert
guidance. (DE 35-7 at 3-4; DE 37 at 3.)
In finding that the RFC here is not supported by substantial evidence and
remanding this matter to the Commissioner for redetermination of the RFC, the
Court cited to and relied on significant case law in this district, as well as in other
circuits, published and unpublished, “confirming the general principle that the ALJ
must generally obtain a medical expert opinion when formulating the RFC unless
the medical evidence shows relatively little physical impairment such that the ALJ
can permissibly render a commonsense judgment about functional capacity.”
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Gross, 247 F.Supp.3d at 828-29 (internal quotation marks omitted and collecting
cases). The Commissioner does not argue that this is a case involving “relatively
little physical impairment such that the ALJ can permissibly render a
commonsense judgment about functional capacity.” See id. Rather, she argues
that the ALJ’s RFC determination need not be based on a medical opinion. (DE 36
at 3-6.)
The Court expressly considered the same argument the Commissioner makes
here, and the Sixth Circuit’s unpublished (albeit reported) case, Rudd v.
Commissioner of Social Security, 531 F. App’x 719 (6th Cir. 2013), in deciding to
remand this matter, but explained that:
[W]here the Court finds that the treating physician’s opinion was
properly rejected or discounted, as here, it is not a question of
requiring the ALJ to base the RFC on the rejected opinion, but rather
of whether the ALJ has another basis for assigning one, beyond the
ALJ’s own interpretation of raw medical data.
Gross, 247 F.Supp.3d at 829 (emphasis in original). The Court found that the ALJ
here did not have “another basis” for the RFC, other than her own interpretation of
the raw medical data, and thus the RFC determination was not supported by
substantial evidence. Id. The Court here further explained that while the district
court cases it cited “do not require the ALJ to entirely base his or her RFC finding
on the opinion of a physician—they [do] require the ALJ’s RFC assessment be

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supported by substantial evidence and not merely on the ALJ’s own medical
interpretation of the record.” Id. (emphasis added).
The ALJ in this case discounted the opinion of Plaintiff’s treating physician
that Plaintiff was unable to perform sedentary work—concededly the only opinion
evidence in the record addressing Plaintiff’s functional limitations—but then
“pointed to her own experience as a nurse and implied an expertise beyond that of
an adjudicator” in making her RFC determination that Plaintiff could perform a
reduced range of sedentary work. Id. at 830. The record contains significant
evidence regarding treatment, testing and hospitalization records regarding
Plaintiff’s leg pain, back and shoulder pain, tender cervical spine issues, and upper
extremity weakness. Id. However, after the treating physician’s opinion was
discounted, the record was devoid of any opinion evidence to aid the ALJ in
formulating the Plaintiff’s RFC. Notably, the ALJ pointed to her own experience
as a nurse “for 40 years” while having Plaintiff stand during her hearing so that the
ALJ could see if Plaintiff’s legs were swollen, further demonstrating that the ALJ
was impermissibly substituting her opinion for that of a physician. Id. However,
for purposes of Social Security Disability Law, the ALJ was a lay person and not
qualified to interpret medical data in functional terms.1 Accordingly, the ALJ’s
RFC was not supported by substantial evidence and has no reasonable basis in fact
1

The Court also noted that nurses are not considered acceptable medsical sources
under the Social Security rules. Gross, 247 F.Supp.3d at 830 (citations omitted).
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because it relied on the ALJ playing doctor (or more aptly here, nurse), and the
Commissioner’s litigation position in defending the misguided role playing was
not substantially justified. See Wilson v. Colvin, No. 13-CV-10158, 2014 WL
824862, at *1 (E.D. Mich. Mar. 3, 2014) (finding plaintiff entitled to award of fees
under the EAJA because “the discounting of Dr. Quines’s [treating physician]
opinion would mean that the ALJ improperly relied on raw medical data in
formulating the RFC determination instead of opinion evidence”). Moreover, the
Commissioner has suffered “a string of losses” on this issue (see Gross, 247
F.Supp.3d at 828-29), which is “objective indicia” that substantial justification is
lacking. Glenn, 763 F.3d at 498 (citing Pierce, 487 U.S. at 569).
2.

Articulation Errors

The Commissioner also contends that the Court remanded here “for lack of
articulation” and thus EAJA fees are not appropriate. (DE 36 at 6.) The
Commissioner relies on language in the Court’s decision stating that, “In the
instant case, it is unclear on what the ALJ based her ultimate RFC conclusion, and
she draws no accurate and logical bridge to instruct the Court of her reasoning.”
(Id. citing Gross, 247 F.Supp.3d at 830.) Plaintiff disagrees that this matter was
remanded for a mere articulation error, but rather because the ALJ’s RFC was
based upon raw medical data and is not supported by substantial evidence. (DE 37
at 5-6.)
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In DeLong, the Sixth Circuit affirmed the denial of EAJA attorney fees
where the “fatal flaw” in the hearing officer’s opinion was “‘not in the weight he
found was appropriate for various medical opinions,’ but rather in his failure to
explain his findings adequately.” DeLong, 748 F.3d at 727 (emphasis in original,
citation omitted). Contrary to DeLong, this matter was not remanded for
“insufficient articulation” or a claimed “failure to explain” findings; but, rather was
remanded for rehearing under Sentence 4 for “insufficient support for the ALJ’s
findings, and [because] the factual issues have not been resolved.” See Gross, 247
F.Supp.3d at 832. The Court expressly found that the ALJ’s RFC determination is
not supported by substantial evidence because the ALJ improperly pointed to her
own experience as a nurse and formulated the RFC based on her own medical
interpretation of the record, and that “[a] remand is necessary to obtain a proper
medical source opinion and for the redetermination of Plaintiff’s RFC.” Gross,
247 F.Supp.3d at 830. Further, as Plaintiff states in her reply brief, “the
formulation of an RFC based upon raw medical data could never be an articulation
error, because the ALJ[,] as a lay person, could never on remand correct or further
explain as to how raw medical data translates into functional terms given they do
not have [sic] medical degrees.” (DE 37 at 6.) The Court also instructed that “[i]f
necessary, the ALJ may utilize any of the tools provided in the regulations for
ordering additional opinion evidence.” Id. at 830-31 (citing 20 C.F.R. §§
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404.1512(b)(2) and 404.1520b(c)). Thus, the errors necessitating remand in this
case were not mere “articulation errors” or mere “failures to explain,” and the
Commissioner’s position was not substantially justified.
3.

Number of issues

Finally, the Commissioner argues that her “litigation position was …
justified ‘in the main,’ and EAJA fees are not appropriate” because Plaintiff raised
four challenges to the ALJ’s decision, and the Court “rejected all Plaintiff’[s]
arguments but one[.]” (DE 36 at 7.) Plaintiff responds that the Sixth Circuit has
directly refuted this position in Glenn, noting that the inclusion of unsuccessful
claims does not undermine the inevitability of remand and finding that the
substantial justification standard is not reduced to comparing successful and
unsuccessful claims. (DE 37 at 7.)
There is no merit whatsoever to the Commissioner’s contention that because
she prevailed on three out of four claims Plaintiff raised in her appeal, her overall
litigation position was therefore reasonable. As the Sixth Circuit emphasized in
Glenn, 763 F.3d at 498, the substantially justified standard is not “a matter of
comparing the number of successful claims to unsuccessful claims in a single
appeal.” “Rather, the question is whether the government’s litigation position in
opposing remand is ‘justified to a degree that could satisfy a reasonable person’
and whether it was supported by law and fact.” Id. at 498-99 (emphasis in
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original) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). As explained
above, the Commissioner’s position here opposing remand in the face of the ALJ’s
erroneous RFC determination based on her own medical interpretation of the
record evidence was not substantially justified.
For all of these reasons, the Court finds that the Commissioner’s litigation
position was not substantially justified.
B.

The Amount and Rate of the EAJA Fees to be Paid

Plaintiff has requested an award of attorney’s fees under the EAJA in the
amount of $8,104.89. (DEs 35, 37.) The Commissioner does not address, much
less contest, either the number of hours or the hourly rate claimed by Plaintiff’s
counsel. (DE 36.)
EAJA fees must be “reasonable.’ 28 U.S.C. § 2412(b). The EAJA provides
that “fees awarded … shall be based upon prevailing market rates for the kind and
quality of the services furnished, except 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, such as the limited availability of qualified attorneys
for proceedings involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A).
Plaintiff’s counsel has requested to be compensated at an hourly rate of
$187.09, which exceeds the statutory cap of $125 per hour. In support, counsel
attaches the Department of Labor’s Consumer Price Index (CPI) for the Midwest
14

urban region of the country, showing a cost of living increase which yields an
hourly rate of $187.09 for work performed in the second half of 2016. (DE 35-2 at
2-3.) Plaintiff’s counsel, Howard Olinsky, also attaches his affidavit which attests
that he has extensive experience in Social Security law. (DE 35-1.)2 He calculates
his fees in this case at 37.9 hours of attorney work performed, for a total of
$7,090.71. In addition, Mr. Olinsky seeks $80.00 per hour for 8 hours of paralegal
work, for a total of $640.00. The total EAJA fees sought in the motion are
$7,730.71. The Court finds that the CPI and Mr. Olinsky’s affidavit are sufficient
documentation to support an increased attorney fee in this case. See Brusch v.
Colvin, No. 15-13972, 2017 WL 1279228, at *3 (E.D. Mich. Apr. 6, 2017)
(awarding attorney fees under the EAJA consisting of an increased attorney fee
based on the CPI and attorney affidavits, and paralegal fees of $100 per hour); see
also Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 581 (2008) (reasonable
attorneys’ fees under the EAJA encompass fees for paralegals).
Plaintiff seeks an additional $374.18 for two hours of work done by counsel
drafting the reply brief. This brings the total fee request to $8,104.89, which the
Court will award as reasonable attorney fees under the EAJA.
Finally, as is typical in Social Security appeals, Plaintiff has executed an
assignment of EAJA fees to her attorney. (DE 35-6.) While EAJA fees would
2

Indeed, the Court acknowledges that Mr. Olinsky was the prevailing attorney in
Glenn, which lends substantial credibility to his claim of extensive experience.
15

otherwise be paid to Plaintiff, see Astrue v. Ratliff, 560 U.S. 586 (2010), the
assignment permits payment directly to the attorney, with an offset for any
preexisting federal debt owed by the Plaintiff. See Cowart v. Comm’r of Soc. Sec.,
795 F.Supp.2d 667, 671-72 (E.D. Mich. 2011).
IV.

Conclusion
Based on the above, the Court finds that the Commissioner did not act

reasonably in law or fact in defending the ALJ’s RFC determination based on her
interpretation of raw medical data, and thus has not met her burden of establishing
that her position was substantially justified.
IT IS HEREBY ORDERED that Plaintiff’s motion for attorney fees
pursuant to the EAJA is GRANTED in the amount of $8,104,89. The
Commissioner shall make payment directly to Plaintiff’s counsel, with an offset for
any preexisting federal debt owed by Plaintiff.
IT IS SO ORDERED.

Dated: March 14, 2018

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

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Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on March 14, 2018, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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