Hutchins v. BERRYHILL

Filing 49

OPINION AND ORDER denying 42 Motion for EAJA Attorney Fees; denying 45 Motion for Leave to File Supplemental Briefing. Signed by District Judge Robert H. Cleland. (LWag)

Case 2:18-cv-10182-RHC-EAS ECF No. 49, PageID.1803 Filed 11/21/22 Page 1 of 10

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______________________________________________________________________
ANTHONY HUTCHINS,
Plaintiff,
v.

Case No. 18-cv-10182

COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
Defendant.

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OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR FEES AND DENYING
PLAINTIFF’S MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEFING
Plaintiff Anthony Hutchins seeks for the court to award him $21,790.13 in fees
and $905.00 in costs under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412,
claiming that the Commissioner’s position was not “substantially justified” in this Social
Security disability benefits action. (ECF Nos. 42, 44.) The motion has been fully briefed.
Further pending before the court is Plaintiff’s Motion for Leave to File Supplemental
Briefing (ECF No. 45) as to his EAJA motion, to which Defendant filed an opposing
response. (ECF No. 46.) The court finds oral argument to be unnecessary. E.D. Mich.
LR 7.1(f)(2). For reasons explained below, the court will deny both motions.
I. BACKGROUND
Plaintiff filed an application for disability benefits on September 17, 2014, alleging
that he became disabled on February 23, 2014. (ECF No. 1, PageID.1–2.) The
application was denied, prompting Plaintiff to timely request a hearing. (Id. at PageID.2.)
On February 1, 2017, Administrative Law Judge (ALJ) Laura Chess held a hearing and,

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in an April 4, 2017 decision, denied Plaintiff’s claim. (Id.) Plaintiff timely requested a
review of ALJ Chess’ decision from the Appeals Council. (Id.) On November 18, 2017,
the Appeals Council denied the review request, thereby making ALJ Chess’ unfavorable
determination the final decision of the Commissioner of Social Security. (Id.) On
January 16, 2018, Plaintiff filed the instant suit pursuant to 42 U.S.C. § 405(g), seeking
judicial review of the Commissioner’s decision. (ECF No. 1.)
Magistrate Judge Elizabeth A. Stafford issued a Report and Recommendation
(“R&R”) on February 13, 2019, advising the court to remand the matter for further
proceedings on two independent grounds: (1) ALJ Chess was not properly appointed
under the Appointments Clause, U.S. Const., Art. II § 2, cl. 2, thereby necessitating a
de novo administrative hearing; (2) ALJ Chess erred by violating the treating physician
rule. (ECF No. 20.) On February 26, 2019, the Commissioner filed timely objections,
arguing that Plaintiff forfeited the Appointments Clause issue by failing to raise it at any
point during the administrative proceedings and that ALJ Chess properly evaluated
Plaintiff’s treating physician’s opinion. (ECF No. 21, PageID.1425, 1433.) On March 26,
2019, the court issued an opinion and order rejecting the R&R, granting the
Commissioner’s objections, and rendering judgment in favor of the Commissioner. (ECF
No. 23.) Plaintiff moved for reconsideration under Federal Rule of Civil Procedure 59(e)
(ECF No. 25), which the court subsequently denied. (ECF No. 30.)
On August 5, 2019, Plaintiff appealed. The Sixth Circuit consolidated Plaintiff’s
appeal with four others that raised the same Appointments Clause problem,
characterizing it as follows: “The question is one of issue exhaustion: must the
claimants have raised their Appointments Clause challenge before the ALJ in order to

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preserve that challenge for judicial review.” Ramsey v. Comm’r of Soc. Sec., 973 F.3d
537, 540 (6th Cir. 2020). Up to that point, the majority, if not all, of the district courts to
address this issue in the Sixth Circuit held that a plaintiff forfeits an Appointments
Clause argument by failing to raise it during administrative proceedings, 1 as did an
overwhelming majority of district courts across the country. 2 Ultimately, however, in a 2See Ramsey v. Comm’r of Soc. Sec., No. 17-13713 (E.D. Mich. Feb. 25, 2019)
(Dawkins Davis, M.J.); Shoops v. Comm’r of Soc. Sec., No. 18-10444 (E.D. Mich. Feb.
14, 2019) (Majzoub, M.J) (“Plaintiff has forfeited his Appointments Clause challenge by
failing to raise it in a timely manner”); Axley v. Comm'r, SSA, No. 1:18-cv-1106, 2019
WL 489998 (W.D. Tenn. Feb. 7, 2019) (Anderson, J.); Faulkner v. Comm’r of Soc. Sec.,
No. 1:17-cv-01197, 2018 WL 6059403 (W.D. Tenn. Nov. 19, 2018) (Anderson, J.); Pugh
v. Comm’r of Soc. Sec., No. 1:18-78, ECF No. 18, PageID 787 (W.D. Mich. Nov. 8,
2018) (Carmody, M.J.); Blackburn v. Berryhill, No. 17-120, ECF No. 23, PageID 630–31
(E.D. Ky. Oct. 18, 2018) (Reeves, J.); Gothard v. Comm'r of Soc. Sec., No.17-cv-13638,
2018 WL 7254254, at *15 (E.D. Mich. Oct. 10, 2018) (Morris, M.J.), R&R adopted, 2019
WL 396785, at *3 (E.D. Mich. Jan. 31, 2019) (Ludington, J.); Davidson v. Comm’r of
Soc. Sec., No. 2:16-cv-00102, 2018 WL 4680327, at *2 (M.D. Tenn. Sept. 28, 2018)
(Crenshaw, J.).
1

See Catherine V. v. Berryhill, No. 17-3257, 2019 WL 568349, at *2 (D. Minn. Feb. 12,
2019) (Frank, J.); Sprouse v. Berryhill, No. 17-04922, ECF No. 15, PageID 704 (D.N.J.
Feb. 6, 2019) (Hart, M.J.); Martin v. Berryhill, No. 18-00115 ECF 17, PageID at *10–12
(M.D.N.C. Dec. 11, 2018) (Webster, M.J.), R&R adopted, Order and J. ECF 19
(M.D.N.C. Jan 4, 2019) (Eagles, J.);Byrd v. Berryhill, No. 1:17- 01619-SKO, 2019 WL
95461, at *6 n.10 (E.D. Cal. Jan. 3, 2019) (Oberto, M.J.); Velasquez v. Berryhill, No. 1717740, 2018 WL 6920457, at *2–3 (E.D. La. Dec. 17, 2018) (Wilkinson, Jr., M.J.), R&R
adopted, 2019 WL 77248 (E.D. La. Jan. 2, 2019) (Africk, J.); Cox v. Berryhill, No.1605434, ECF No. 26, at *3–4 (E.D. Pa. Dec. 18, 2018) (Diamond, J.);Bowman v.
Berryhill, No. 18-157, ECF No. 12, at *24 (S.D. Iowa Dec. 13, 2018) (Pratt, J.);
Abbington v. Berryhill, No. 1:17-00552-N, 2018 WL 6571208, at *7–9 (S.D. Ala. Dec. 13,
2018) (Nelson, M.J.); Nickum v. Berryhill, No. 17-2011- SAC, 2018 WL 6436091, at *5–
6 (D. Kan. Dec. 7, 2018) (Crow, J.); Field v. Comm’r of Soc. Sec., No. 18- 00119, at *2
(M.D. Fla. Oct. 15, 2018) (Spaulding, M.J.); Garrison v. Berryhill, No. 1:17-00302-FDW,
2018 WL 4924554, at *2 (W.D.N.C. Oct.10, 2018) (Whitney, J.); Deidre T. v. Comm’r of
Soc. Sec. Admin., No. 17-00650, ECF No. 17at *55–56 (N.D. Ga. Sept. 28, 2018)
(Vineyard, M.J.); Williams v. Berryhill, No. 2:17-87-KS-MTP, 2018 WL 4677785, at *2–3
(S.D. Miss. Sept. 28, 2018) (Starrett, J.); Stearns v. Berryhill, No. C17-2031-LTS, 2018
WL 4380984, at *5–6 (N.D. Iowa Sept. 14, 2018) (Strand, J.); Hugues v. Berryhill, No.
CV 17-3892-JPR, 2018 WL 3239835, at *2 n.2 (C.D. Cal. July 2, 2018) (Rosenbluth,
M.J.). But see contra Bizarre v. Berryhill, No. 1:18-CV-48, 2019 WL 1014194 (M.D. Pa.
Mar. 4, 2019) (no waiver) (Conner, J.).
2

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1 decision, the Ramsey Court agreed with the claimants that, “their failure to raise the
Appointments Clause challenge before the agency does not foreclose their ability to
seek judicial review of that claim” and ordered the remedy of “a new hearing before
ALJs other than the ALJs who conducted their original hearings.” Id. at 546–47. The
Sixth Circuit solely addressed this constitutional issue. It did not address any
substantive attacks on the analysis undertaken by the ALJs in coming to their
unfavorable disability determinations.
In so ruling, the Ramsey Court evened an existing split within the federal circuit
courts on the Appointment Clause issue, joining with the Third Circuit, Cirko v. Comm’r
of Soc. Sec., 948 F.3d 148 (3d Cir. 2020), against the Eighth and Tenth Circuits, Davis
v. Saul, 963 F.3d 790 (8th Cir. 2020), Hilliard v. Saul, 964 F.3d 759 (8th Cir. 2020), Carr
v. Comm’r, SSA, 961 F.3d 1267 (10th Cir. 2020). In short order, the Fourth Circuit also
joined with the Third and Sixth Circuits. Probst v. Saul, 980 F.3d 1015 (4th Cir. 2020).
On January 29, 2021, the Commissioner filed a petition for a writ of certiorari with
respect to the Ramsey Court’s decision. (ECF No. 39.) At the time, however, the
Supreme Court had already granted petitions for certiorari in Davis from the Eighth
Circuit and Carr from the Tenth Circuit. (See id.) On April 22, 2021, the Supreme Court
definitively resolved the Appointments Clause issue with Carr v. Saul, 141 S. Ct. 1352,
1356 (2021), holding that Social Security disability claimants did not “forfeit[] their
Appointments Clause challenges by failing to make them first to their respective ALJs.”
On May 20, 2021, the court signed an order for remand after receipt of a
stipulation for the same from the parties. (ECF Nos. 40, 41.) On June 16, 2021, Plaintiff
filed the EAJA motion at bar. (ECF No. 42.) On June 28, 2021, the Commissioner filed a

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response. (ECF No. 43.) On June 29, a reply followed. (ECF No. 44.) On July 20, 2022,
Plaintiff filed a motion for leave to file supplemental briefing as to his EAJA motion,
seeking to provide the court with information regarding a favorable disability
determination received from the Commissioner in post-remand administrative
proceedings. (ECF No. 45.) Plaintiff’s counsel further disclosed for the first time that his
client, Anthony Hutchins, tragically committed suicide on or about July 1, 2020 and
stated that Lee Andrew Hutchins became the substitute party. (Id. at PageID.1790.)
Presumably due to the Commissioner’s indication that he had not used the appropriate
mechanism for substitution of a party (ECF No. 46, PageID.1793), on July 25, 2022,
Plaintiff’s counsel filed a formal motion for substitution pursuant to Federal Rule of Civil
Procedure 25(a). (ECF No. 47.) That motion will be resolved by another order.
II. STANDARD
Pursuant to 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. Comm’r of Soc. Serv., 763 F.3d 494, 498 (quoting 28
U.S.C. § 2412(d)(1)(A)). To be “substantially justified” within the meaning of the EAJA,
the government’s position must be “‘justified in substance or in the main’—that is,
justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487
U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). “This standard ‘means, of
course, more than merely undeserving of sanctions for frivolousness;’ and is not
different from having ‘a reasonable basis both in law and fact.’” Glenn, 763 F.3d at 498
(quoting Underwood, 487 U.S. at 565).

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It is the government’s burden to prove that “a given position was substantially
justified, and it discharges that burden by demonstrating that the position had a
reasonable basis both in law and fact.” DeLong v. Comm’r of Soc. Sec., 748 F.3d 723,
725–26 (6th Cir.2014) (internal quotation marks and citations omitted). When
considering whether the government’s position is substantially justified, the court
focuses on the merits of both its pre-litigation and litigation positions. “While objective
indicia of reasonableness—such as a dissenting opinion, the views of other courts, a
string of losses, or a string of successes—may be relevant, it is the actual merits of the
Government’s litigating position that matter most.” Griffith v. Comm’r of Soc. Sec., 987
F.3d 556, 563 (6th Cir. 2021) (citing United States ex rel. Wall v. Circle C Constr., LLC,
868 F.3d 466, 471 (6th Cir. 2017)) (internal quotations omitted). Courts are cautioned
against being “subtly influenced by the familiar shortcomings of hindsight judgment.”
Beck v. Ohio, 379 U.S. 89, 96 (1964). “For that reason, [courts] distinguish between
cases in which the government lost because it vainly pressed a position flatly at odds
with the controlling case law and cases in which the government lost because an
unsettled question was resolved unfavorably.” Griffith, 987 F.3d at 564.
III. DISCUSSION
In his EAJA fee motion, Plaintiff argues that, based on the rulings of the Sixth
Circuit in Ramsey and the Supreme Court in Carr, the Commissioner was not
substantially justified in maintaining the position that Plaintiff forfeited his Appointments
Clause challenge. (ECF No. 42-2, PageID.1738.) While he does not contest that Plaintiff
is a prevailing party for purposes of the EAJA, the Commissioner counters that his
prelitigation and litigation positions were substantially justified, making a fee award

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improper. (ECF No. 43, PageID.1766.) With respect to his prelitigation position, the
Commissioner contends that no settled law mandates that he raise sua sponte, through
either an ALJ or the Appeals Council, an Appointments Clause issue, thereby justifying
his actions at the administrative level. (Id. at PageID.1766–68.) With respect to his
litigation position, namely that Plaintiff forfeited the right to raise an Appointments
Clause challenge because he did not raise it during the administrative proceedings, the
Commissioner argues that he was substantially justified, even in spite of Ramsey and
Carr, as the issue was one of unsettled law. (Id. PageID.1768.) Though not addressed
in Plaintiff’s initial motion, the Commissioner also asserts that he was substantially
justified in defending ALJ Chess’ unfavorable disability determination given this Court’s
March 26, 2019 Opinion and Order (ECF No. 23), which found that ALJ Chess did not
violate the treating physicians rule. (Id. at PageID.1772.)
In his reply brief, Plaintiff attacks the Commissioner’s assertion that his
prelitigation position was justified, arguing that the informal, non-adversarial features of
the administrative proceedings do in fact charge ALJs with actively assisting claimants
and adjudicating matters in compliance with the United States Constitution. (ECF No.
44, PageID.1778–80.) Because the Commissioner does not dispute that ALJ Chess
was improperly appointed and notice of the constitutional infirmity of his ALJs can be
traced to Freytag v. Commissioner, 501 U.S. 868 (1991) and its progeny, Plaintiff
contends the Commissioner’s prelitigation position was not substantially justified. (Id. at
PageID.1780–81.) Plaintiff further contests the Commissioner’s arguments with respect
to his litigation position, asserting that the Cirko Court’s decision—the very first Circuit to
rule on the issue—reflects that the Appointments Clause issue was not a matter of

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unsettled law. (Id. PageID.1783.) Finally, Plaintiff contends that the Commissioner was
not substantially justified in defending ALJ Chess’ decision on the merits of his disability
claim, pointing to the Magistrate Judge’s R&R. (Id. PageID.1786–87.)
The court finds that a fee award under the EAJA is inappropriate in this case
because the Commissioner’s prelitigation and litigation positions were substantially
justified. With respect to the Commissioner’s prelitigation position, Plaintiff attempts to
impose a sua sponte duty on the Commissioner to raise Appointments Clause issues
that simply does not exist in law. See Rich v. Comm’r of Soc. Sec. Admin., 477 F. Supp.
3d 388, 394 (E.D. Penn. 2020) (“We see no support imposing a sua sponte obligation
on the Commissioner to raise Appointments Clause challenges.”); Ramsey v. Comm’r of
Social Security, No. 17-cv-13713, 2021 WL 5233285, at *2 (E.D. Mich. Nov. 10, 2021)
(Edmunds, J.); Schrader v. Comm’r of Soc. Sec., No. 19-cv-11663, 2021 WL 5233288,
at *2 (E.D. Mich. Nov. 10, 2021) (Edmunds, J.); Fortin v. Comm’r of Soc. Sec., No. 18cv-10187, 2022 WL 1085677, at *3 (E.D. Mich. Apr. 11, 2022) (Lawson, J.). As such,
the court finds it was reasonable for the Commissioner to not sua sponte raise the issue
of the Appointments Clause during the initial administrative proceedings in this case.
Additionally, the court finds reasonable the Commissioner’s litigation position that
Plaintiff forfeited his right to challenge his unfavorable disability determination on
Appointments Clause grounds, as it was adopted by an overwhelming majority of district
courts nationwide. The Commissioner could also reasonably maintain this position even
post-Ramsey because the Supreme Court was set to resolve the issue. Carr, 141 S. Ct.
at 1357. Finally, once Carr was decided, the Commissioner appropriately stipulated to a
remand, thereby not vainly pressing a position flatly at odds with the controlling case

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law. (ECF No. 40.) As such, the court views the Commissioner’s litigation position as
one lost “because an unsettled question was resolved unfavorably,” Griffith, 987 F.3d at
564, making a fee award inappropriate on these grounds.
Finally, the Commissioner was reasonable in taking the litigation position that
ALJ Chess’ unfavorable disability determination was analytically correct. The court had
occasion to address whether ALJ Chess violated the treating physician rule in its
opinion rejecting Magistrate Judge Stafford’s R&R. (ECF No. 23.) The court determined
that substantial evidence supported ALJ Chess’ analysis, ultimately resolving not to
disturb her disability determination. (Id.) Because the Sixth Circuit did not address the
issue of ALJ Chess’ analysis in Plaintiff’s appeal, the court’s decision remains the law of
the case. As such, for the same reasons now, the court finds the Commissioner’s
litigation position at the time appropriate. Plaintiff would have the court hold otherwise,
relying on a new, favorable disability determination from the Commission during postremand proceedings before a different ALJ. (ECF No. 45, PageID.1790.) He contends
that the decision “was based almost entirely on evidence that was before this Court in
this appeal,” thereby making it “highly relevant” as to whether the Commissioner’s initial
benefit denial was substantially justified. (Id.) The court disagrees. The mere fact that a
different ALJ came to an alternate conclusion does not alter the court’s previous finding
that ALJ Chess’ decision was supported by substantial evidence. (Id.)
Because the court finds all prelitigation and litigation positions held by the
Commissioner to be substantially justified, it need not explore whether Plaintiff’s counsel
is entitled to a higher fee.

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IV. CONCLUSION
For the foregoing reasons, Plaintiff’s motion for EAJA fees is denied. The
Commissioner’s prelitigation and litigation positions were substantially justified,
rendering such an award improper. The court does not require additional briefing to
resolve that question and will therefore deny Plaintiff’s motion for leave to supplement.
Accordingly,
IT IS ORDERED that Plaintiff’s Motion for Fees Under the Equal Access to
Justice Act (ECF No. 42) and Motion for Leave to File Supplemental Briefing (ECF No.
45) are DENIED.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE

Dated: November 21, 2022

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I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, November 21, 2022, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]
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