Valentine v. Social Security, Commissioner of

Filing 20

ORDER Granting 17 Motion for Attorney Fees and Costs. Signed by District Judge David M. Lawson. (SPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TINA VALENTINE,
Plaintiff,
v.

Case Number 16-12516
Honorable David M. Lawson
Magistrate Judge David R. Grand

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________/
ORDER GRANTING MOTION FOR ATTORNEY’S FEES
On August 9, 2017, Magistrate Judge David R. Grand filed a report recommending that the
Court grant in part the plaintiff’s motion for summary judgment in this Social Security appeal and
remand the case for further proceedings under sentence four of 42 U.S.C. § 405(g). The
Commissioner did not object to the report and recommendation, and the Court adopted it and entered
judgment on August 24, 2017. Now before the Court is the plaintiff’s motion for costs and
attorney’s fees under Equal Access to Justice Act (EAJA). She seeks $2,112.50 in fees and $400
in costs. The Commissioner has filed an answer in opposition, contending that the plaintiff has not
shown an entitlement to attorney’s fees under the EAJA because the Commissioner’s position was
substantially justified. The Commissioner does not dispute the amount of the fees, and appears not
to contest the request for costs.
Under the EAJA, “a court shall award to a prevailing party . . . fees and other expenses . . .
incurred by that party in any civil 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 . . . .” 28 U.S.C. § 2412(d)(1)(A). The statute requires the party seeking fees
to establish that she has prevailed in a suit involving the government; thereafter, the government has

the burden to prove that its position was “substantially justified.” Sigmon Fuel Co. v. Tenn. Valley
Auth., 754 F.2d 162, 166 (6th Cir. 1985) (citing Berman v. Schweiker, 713 F.2d 1290, 1293 n.9 (7th
Cir. 1983)). Because the Commissioner has not sustained his burden, the Court will grant the
motion.
I.
The magistrate judge determined that the case should be remanded to the agency for further
proceedings under sentence four of 42 U.S.C. § 405(g), because the administrative law judge (ALJ)
failed to consider important evidence that could have established that the plaintiff suffered a listing
level impairment. The Supreme Court has determined that a remand under sentence four confers
prevailing party status on the plaintiff. See Shalala v. Schaefer, 509 U.S. 292, 301 (1993) (noting
a “sharp distinction” between a sentence-four remand, which terminates the litigation with victory
for the plaintiff, and a sentence-six remand, which does not”). Judge Grand found that substantial
evidence in the record did not justify the ALJ’s conclusion that the plaintiff was not disabled.
The main point of contention focused on Listing 1.07, which concerns fractures of an upper
extremity. See 20 C.F.R. § Pt. 404, Subpart P, App. 1 § 1.07 (“Fracture of an upper extremity with
nonunion of a fracture of the shaft of the humerus, radius, or ulna, under continuing surgical
management, as defined in 1.00M, directed toward restoration of functional use of the extremity,
and such function was not restored or expected to be restored within 12 months of onset.”). Judge
Grand observed that “the ALJ explained his conclusion that Valentine did not meet Listing 1.07 in
a single sentence: ‘There is no objective medical evidence, as discussed below, showing
[Valentine’s] ulna fracture meets the requirements of this Listing.’ (Tr. 24).” But “[t]wo pages

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later, the ALJ dedicated close to two paragraphs to Valentine’s treatment records regarding her ulna
fracture. (Tr. 26).” Report & Recommendation [14] at 13-14 (Pg ID 643-44).
The magistrate judge noted that the parties agreed that the plaintiff met the requirements of
the listing that she had suffered a fracture in one of the enumerated locations that would not rejoin,
but they disagreed on whether she could show that she was under continuing surgical management
for her condition, and whether her arm function had been restored or was expected to be restored
within 12 months. Judge Grand concluded that the ALJ’s finding overlooked substantial record
evidence of ongoing surgical treatment for the fracture, and that the ALJ failed to acknowledge or
explain the significance of that evidence in reaching his sketchy conclusion that the plaintiff did not
meet or exceed the criteria of Listing 1.07.
What bothered Judge Grand the most was the ALJ’s failure to account for evidence actually
in the record that conflicted with his conclusion that there was “no medical evidence” showing that
the plaintiff met the listing. That did not square with the ALJ’s acknowledgment of treatment
records showing that (1) on October 10, 2014, she underwent hardware removal and bone grafting
of the left distal ulna; (2) at that time, there “was some sclerosis at the fracture margins, suggesting
chronic non-union”; (3) on February 18, 2014, October 7, 2014, and December 17, 2014, the
plaintiff’s treating physician noted that the forearm “showed abnormalities”; (4) on April 30, 2014,
the plaintiff had limited range of motion and tenderness with active and passive movement in her
upper left extremity; (5) more than a year later, on May 20, 2015, the same treating physician found
that the plaintiff’s wrists, forearms, and elbows showed abnormalities related to supination,
pronation, flexion, and extension, and “noted that attempted bone grafting and a bone stimulator
‘failed to unite the 2nd non-union site [caused by the hardware placed in Valentine’s arm] . . . the

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non-union is no farther ahead than when we started’”; and (6) on August 20, 2015, another medical
examiner found that the plaintiff had atrophy in her forearm muscles; tenderness in the left distal
ulna shaft; pain upon palpation of the distal ulna; diminished range of motion in her left forearm
with pain upon pronation and supination; and diminished range of motion in her left wrist with pain
upon extension and flexion. The same examination also revealed “a nonunion” and that the plaintiff
had weak grip strength. Report & Recommendation at 17-19 (Pg ID 647-49).
The magistrate judge believed that these inconsistencies needed explaining, and a remand
for that explanation was required. As noted earlier, the Commissioner did not object.
II.
The Commissioner argues that the decision to defend the denial of benefits was substantially
justified because the principal ground for the conclusion that remand was warranted was not a
finding that the record clearly established the plaintiff’s entitlement to benefits, but merely that the
determination that the plaintiff failed to meet Listing 1.07 was not adequately explained and the ALJ
failed to account for conflicting evidence in the medical record.
The Commissioner contends that the ALJ’s failure adequately to explain his conclusion does
not, in itself, establish that persistence in defending the ALJ’s ruling was not substantially justified,
particularly where there was some evidence in the medical record indicating that the plaintiff had
normal arm function when she was examined in December 2013 and January 2014 (which, however,
was around a year and a half before she was referred by her treating physician for follow-up
treatment by an othopedist due to there being “no progress” in restoration of the fracture). See
Report & Recommendation [14] at 15-17 (Pg ID 645-47).

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Under the EAJA, the government’s litigation position will be found to be substantially
justified if it “had a reasonable basis in both law and in fact.” Pierce v. Underwood, 487 U.S. 552,
563 (1988) (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). In the context of Social
Security benefits cases, substantially justified means “‘justified in substance or in the main’ — that
is, justified to a degree that could satisfy a reasonable person.” Pierce, 487 U.S. at 565 (quoting
United States v. Yoffe, 775 F.2d 447, 449-50 (1st Cir. 1985)).
Reasonableness, therefore, is the watchword. The Supreme Court has declared, “[t]o be
‘substantially justified’ means . . . more than merely undeserving of sanctions for frivolousness,”
since that standard alone is not in keeping with the reasonableness criterion. Pierce, 487 U.S. at
566. But the reasonableness standard does not require that the Commissioner prevail in the matter:
the “‘substantially justified’ standard should not ‘be read to raise a presumption that the Government
position was not substantially justified simply because it lost the case.’” Howard v. Barnhart, 376
F.3d 551, 554 (6th Cir. 2004) (quoting Scarborough v. Principi, 541 U.S. 401, 415 (2004)). ‘“[T]he
fact that one other court agreed or disagreed with the Government does not establish whether its
position was substantially justified.’” Howard, 376 F.3d at 554 (quoting Pierce, 487 U.S. at 569).
The Sixth Circuit has provided guidance on the question of substantial justification where
the Commissioner rejects a Social Security benefits claim. In Howard v. Barnhart, the court found
that when an administrative law judge is found to have selectively considered the evidence in
denying benefits, the Commissioner’s decision to defend that denial is without substantial
justification. Howard, 376 F.3d at 554 (citing Flores v. Shalala, 49 F.3d 562, 570 (9th Cir. 1995)).
In that case, the court found that the ALJ’s decision relied upon an erroneous residual functional
capacity determination. The court determined that the ALJ should have accorded the claimant’s

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treating physician’s opinions complete deference because they were not contradicted by any other
medical opinion. Also important to the court’s “substantial justification” analysis was the fact that
the ALJ’s hypothetical question to the vocational expert “fail[ed] to describe accurately [the
plaintiff’s] physical and mental impairments,’” since the question did not take account of the
limitations confirmed by the treating physicians. Howard, 376 F.3d at 553 (quoting Howard v.
Comm’r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002)).
By contrast, in Jankovich v. Bowen, 868 F.2d 867 (6th Cir. 1989), the court found that
although the Commissioner’s decision was not based on substantial evidence, it was still grounded
in a reasonable belief in fact and law that the plaintiff was not disabled. In support of that finding,
the court noted that several of the physicians who examined the plaintiff concluded that he had the
functional capacity to perform his prior work, even though the plaintiff’s own physician opined that
the plaintiff was disabled during the relevant period of time, and that the physician could not
determine the plaintiff’s potential ability to return to his previous work until after shoulder surgery
and rehabilitation. Id. at 870.
The Commissioner’s opposition in this case is distinguishable from Jankovich and closer to
the situation in Howard, because the principal conclusion of the magistrate judge that warranted
remand here was that the ALJ expressly acknowledged substantial evidence suggesting that the
plaintiff had an unresolved arm fracture and was receiving ongoing surgical treatment in an attempt
to rejoin the break through 2014 and into 2015, but the ALJ failed to account for or explain the
significance of that evidence in reaching his conclusion that there was “no evidence” that the
plaintiff met or exceeded Listing 1.07. That was not merely a questionable conclusion based on
conflicting and equally weighty medical evidence that could have supported a decision either way.

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It was a wholesale abdication by the ALJ of his duty adequately to review and account for all the
pertinent medical information, particularly where there was substantial information in the record
indicating a lack of bone fusion and diminished arm function which plausibly suggested that the
listing requirements were met.
Just as in Howard, where the principal error by the ALJ was selectively ignoring record
evidence that directly contradicted his conclusion, with no elaboration of any reason why it was
discounted or ignored, the government’s election to persist in defending the denial of benefits here
is not substantially justified. As the Sixth Circuit explained in Glenn v. Comm'r of Soc. Sec., 763
F.3d 494 (6th Cir. 2014):
This is not a case where remand was based only on the ALJ’s failure to adequately
explain his findings, or where the weight given was explained by other facts in the
record. The errors go to the heart of Glenn’s disability claim. It is uncertain whether
Glenn’s application for benefits will ultimately be granted or denied. Irrespective
of what happens on remand, however, Glenn had to retain counsel to ensure that her
claim would be properly adjudicated. As we have explained, an ALJ must evaluate
a claimant’s disability in accordance with the applicable regulations and laws,
including the requirement that the ALJ consider all evidence in the record. Because
that was not done here, Glenn’s evaluation contained at least five errors warranting
reversal and remand. The government has failed to satisfy its burden to show that
its position in support of this record was “justified in substance or in the main” or
had a “reasonable basis both in law and fact.”
763 F.3d at 500 (citations omitted).
The Commissioner’s decision to persist in litigating the denial of benefits here was not
“substantially justified” in light of the ALJ’s wholesale disregard of substantial record evidence that
called into question his decision on the listing issue.

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III.
The plaintiff was the prevailing party, and the Commissioner has not shown that his litigation
position was substantially justified.
Accordingly, it is ORDERED that the plaintiff’s motion for attorney fees [17] is
GRANTED.
It is further ORDERED that the plaintiff may recover of the government attorney’s fees in
the amount of $2,112.50 and costs in the amount of $400.

s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: January 22, 2018
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on January 22, 2018.
s/Susan Pinkowski
SUSAN PINKOWSKI

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