Marion v. COLVIN
Filing
35
OPINION AND ORDER DENYING Plaintiff's 32 Petition for Attorney Fees filed by Evan Marion--Signed by Magistrate Judge Anthony P. Patti. (MWil)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EVAN CARLYLE MARION,
Plaintiff,
Case No. 2:16-cv-11198
Magistrate Judge Anthony P. Patti
v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
___________________________________/
OPINION AND ORDER DENYING PLAINTIFF’S APPLICATION
FOR ATTORNEYS’ FEES UNDER THE EAJA (DE 32)
I.
BACKGROUND
A.
Procedural Background
Plaintiff, Evan Carlyle Marion, filed his applications for disability insurance
(DI) and supplemental security income (SSI) in October and November 2010,
respectively, alleging that he has been disabled since May 25, 2010. (R. at 266,
274.) Plaintiff’s applications were denied, and he sought a de novo hearing before
an Administrative Law Judge (“ALJ”). (R. at 113-136, 170-178, 182-183.) ALJ
Anthony M. Smereka held a hearing on January 27, 2012, and subsequently
determined that Plaintiff was not disabled within the meaning of the Social
Security Act. (R. at 78-112, 61-77, 137-153.) On June 25, 2013, the Appeals
Council denied Plaintiff’s request for review. (R. at 55-60.)
On August 13, 2013, Plaintiff filed an application for SSI benefits, alleging
that he has been disabled since June 26, 2013. (R. at 292-297.) Plaintiff’s
application was denied, and he sought a de novo hearing before an ALJ. (R. at
154-169, 217-225, 226-230.) ALJ Jerome B. Blum held a hearing on January 21,
2015, and subsequently determined that Plaintiff was not disabled within the
meaning of the Social Security Act. (R. at 28-45, 12-27.) On February 19, 2016,
the Appeals Council denied Plaintiff’s request for review. (R. at 1-11.) Thus, ALJ
Blum’s decision became the Commissioner’s final decision.
Plaintiff then timely commenced the instant action in federal court. (DE 1.)
In his motion for summary judgment or remand, he set forth three statements of
error: (1) the ALJ’s Step 3 determination is improper and not supported by
substantial evidence; (2) the ALJ violated the procedural aspect of the treating
source rule in evaluating the medical source opinion of David Coleman, MA,
LLPC; and (3) the ALJ failed to create an accurate Residual Functional Capacity
Assessment and therefore erroneously found work at Step Five. (DE 17 at 15, 1626.) The Commissioner opposed Plaintiff’s motion and filed a motion for
summary judgment, asserting that substantial evidence supports the
Commissioner’s decision. (DE 20.) Plaintiff filed a reply brief in support of his
motion. (DE 21.) The parties consented to my authority (DE 26), and a hearing
was held on May 4, 2017, at which Plaintiff’s counsel (attorney Wesley J. Lamey)
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appeared in person and defense counsel (AUSA Jeanne D. Semivan) appeared by
telephone. (DE 31.)
On May 8, 2017, the Court issued an Opinion and Order granting in part and
denying in part Plaintiff’s motion for summary judgment or remand, granting in
part and denying in part Defendant’s motion for summary judgment, and
remanding case to the Social Security Administration. Marion v. Comm'r of Soc.
Sec., No. 4:16-CV-11198, 2017 WL 1833122 (E.D. Mich. May 8, 2017) (Patti,
M.J.). While the Court affirmed the ALJ’s assessment of Listing 1.04 and
treatment of opinion evidence from therapist Coleman, the Court construed
Plaintiff’s third argument as “an attack on the ALJ’s Step 4 RFC determination . . .
[,]” and concluded that the ALJ “failed to address Plaintiff’s significant social
limitations.” Marion, 2017 WL 1833122, *1-*3.
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 $6,912.50, consisting of
39.5 hours at $175.00/hour. (DE 32 at 5, DE 32-2.) In support of this request,
Plaintiff alleges that Defendant’s position was “not substantially justified.” (DE 32
at 3 ¶ 6.)1
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Plaintiff’s explanation for the Commissioner’s “lack of substantial justification”
refers to an error in the ALJ’s evaluation of Dr. Peter Smith’s opinion. (DE 32 at 3
¶ 7.) This first sentence of the paragraph appears to be copied and pasted from an
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The Commissioner opposes Plaintiff’s application and argues that her
position was substantially justified for several reasons: (1) the subtle or obscure
nature of the issue on which the case was remanded compared with the prominence
of the issues on which the Commissioner prevailed (DE 33 at 5); (2) the late
clarification of the issue upon which the Plaintiff prevailed (DE 33 at 5-9); and (3)
the factual reasonableness of the Commissioner’s position (DE 33 at 9-10).
Although Plaintiff reserved the right to file a reply in the event the
Commissioner argued that “her position was substantially justified,” (DE 32 at 4-5
¶ 9), he has not done so.
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:
EAJA motion filed by Plaintiff’s counsel in Chene v. Colvin, Case No. 2:15-cv10576-APP, DE 28 therein at *3 (E.D. Mich. Dec. 12, 2016), but has no
application here.
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[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
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, the Commissioner does not appear to
dispute Plaintiff’s status as a prevailing party on the third issue of the appeal. (DE
32 at 2-3 ¶ 5, DE 33 at 15.) Likewise, the Commissioner does not articulate a basis
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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 32 at 3 ¶ 6; DE 33 at 5-10.) The Commissioner
bears 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) (Murphy, J., adopting
report and recommendation of Hluchaniuk, M.J.) (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
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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
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.
Prominence
The Commissioner points out that the Court “found no error with respect to
the majority of alleged errors Plaintiff identified[.]” (DE 33 at 5.) True, 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 original) (quoting Pierce v. Underwood, 487 U.S. 552,
565 (1988)).
However, in the instant EAJA application, the Commissioner more
specifically explains that “the sole argument on which this Court found error . . . ”
was less “developed and prominent” in Plaintiff’s brief than those on which “this
Court found no error . . . .” (DE 33 at 5.) “The district court should assess, if the
two are distinct, which claim is more prominent in driving the case in order to
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make the substantial justification determination[.]” E.E.O.C. v. Memphis Health
Ctr., Inc., 526 F. App'x 607, 615 (6th Cir. 2013). See also Amezola–Garcia v.
Lynch, 835 F.3d 553, 555 (6th Cir. 2016) (in denying motion for attorney fees
under the EAJA, the Court noted that “[t]hese two other claims were also more
‘prominent’ than the voluntary-departure issue.”); Chene v. Comm'r of Soc. Sec.,
No. 2:15-CV-10576, 2017 WL 840422, at *3 (E.D. Mich. Mar. 3, 2017) (Patti,
M.J.) (“the Court remanded on only one of Plaintiff's three statements of error[,]”
and “even where the Court remanded, the law was not settled and the
Commissioner relied on non-binding case law that supported its position, even if
the Court ultimately disagreed with its reasoning.”).
Of the approximate 10 pages of argument, the issue on which this case was
remanded comprised only two of those pages, and, it was the third of three
arguments. (DE 17 at 16-26.) As such, it may be considered the least prominent
argument. Amezola-Garcia, 835 F.3d at 555 (“The voluntary-departure issue made
up only seven pages out of the twenty-five pages of argument in his brief, and it
was the last argument made.”).
2.
Late clarification
The Commissioner argues that “the sole argument on which Plaintiff
prevailed was not clearly articulated until the hearing held on May 4, 2017.” (DE
33 at 5.) This is a fair characterization, considering the related portion of
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Plaintiff’s brief (DE 17 at 24-26), the Commissioner’s brief (DE 20 at 23), the
hearing transcript (DE 31 at 27, 60-61), and the Court’s May 8, 2017 opinion and
order (DE 29 at 3-8). McKeel v. Comm'r of Soc. Sec., No. 14-CV-12815, 2015 WL
5619848, at *3 (E.D. Mich. Sept. 24, 2015) (Drain, J.) (the Court denied Plaintiff’s
motion for attorney’s fees, noting, inter alia, that “Plaintiff's success in reversing
the denial of benefits was not due to his own efforts, so much as Defendant's
mention that no medical expert gave an opinion regarding whether Plaintiff's
impairments medically equaled a listing.”).
3.
Reasonableness in fact / articulation errors
The Commissioner argues that her position was “reasonable in fact[,]”
because, “[t]o the extent that the ALJ erred in addressing social limitations
assessed by Dr. Gummadi, it was in a failure to fully articulate his rationale for
declining to adopt such limitations.” (DE 33 at 9.) This interpretation of the ALJ’s
decision is consistent with the Court’s opinion, as the Court’s discussion of how
the ALJ “failed to address Plaintiff’s significant social limitations[,]” contains
statements such as:
it is not clear to this subsequent reviewer why the ALJ’s RFC
determination does not include any social imitations.
It is not evident why Dr. Williams-White seemingly ignored the
more severe social functioning conclusions in Dr. Gummadi’s
opinion, particularly those which relate to interactions with
coworkers and supervisors.
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It is similarly unclear why the ALJ accredited Dr. Gummadi’s
opinion that Plaintiff is “able to understand, retain, and follow
simple instructions[,]” but not his opinion that Plaintiff is only
capable of “brief, superficial interactions with coworkers,
supervisors, and the public[.]” (R. at 18, 586.)
The ALJ [did not] adequately address[] why he failed to do so.
in this case, the Court finds that the ALJ’s decision on social
functioning lacks clarity.
yet, the ALJ did not explain why.
This is an error which must be corrected, either by providing a
clear and supported explanation for why the social limitations
were not included in the RFC or by including them in a new
RFC and a revised Step 5 analysis.
(DE 29 at 4-8 (emphases added); see also DE 31 at 61-65.) In the end, the Court
reasoned that “there [wa]s insufficient support for the ALJ’s RFC determination –
namely the failure to adequately address Plaintiff’s social limitations, and the
factual issues as to Plaintiff’s social limitations have not been resolved.” The
Court then remanded the case “in order . . . to have an appellate record which
would ‘permit meaningful review[.]’” (DE 29 at 9.)
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). Such was the case here, where the errors necessitating remand in
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this case were “articulation errors” and “failures to explain,” and the
Commissioner’s position was substantially justified.
IV.
CONCLUSION
For the combined reasons stated above, the Court finds that the
Commissioner’s position on the merits of the appeal had “a reasonable basis both
in law and fact[,]” Glenn, 763 F.3d at 498, and thus has met her burden of
establishing that her position was substantially justified. Accordingly, Plaintiff’s
application for EAJA fees (DE 32) is DENIED.
IT IS SO ORDERED.
Dated: March 20, 2018
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 20, 2018, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti
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