Podorsek v. Commissioner of Social Security

Filing 36

MEMORANDUM OPINION and ORDER re 30 DENYING plaintiff's motion for attorney's fees; signed by Magistrate Judge Phillip J. Green (Magistrate Judge Phillip J. Green, jkw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______________________

CYNTHIA J. PODORSEK,

)
)
Plaintiff,
)
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v.
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)
COMMISSIONER OF
)
SOCIAL SECURITY,
)
)
Defendant.
)
____________________________________)

Case No. 1:18-cv-2
Honorable Phillip J. Green

MEMORANDUM OPINION AND ORDER
This was a social security action brought under 42 U.S.C. §§ 405(g),1383(c)(3),
seeking review of a final decision of the Commissioner of Social Security denying
plaintiff’s claims for disability insurance benefits (DIB) and supplemental security
income (SSI) benefits. On June 21, 2018, the Court entered a judgment vacating the
Commissioner’s decision and remanding the case for further administrative
proceedings under sentence four of 42 U.S.C. § 405(g). (ECF No. 28).
The matter is now before the Court on plaintiff’s motion for attorney=s fees
under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. (ECF No. 30).
Defendant opposes the motion. (ECF No. 34). Plaintiff has replied. (ECF No. 35).
For the reasons set forth herein, plaintiff’s motion will be denied.

Discussion
The EAJA provides in relevant part:
Except as otherwise specifically provided by statute, a court shall award
to a prevailing party other than the United States fees and other
expenses . . . incurred by that party in any civil action . . ., including
proceedings for judicial review of agency action, brought by or against
the United States . . ., 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)(1)(A); see Astrue v. Ratliff, 560 U.S. 586, 591-93 (2010). A district
court’s decision granting or denying a motion for attorney=s fees under the EAJA is
reviewed on appeal under a deferential “abuse of discretion” standard. DeLong v.
Commissioner, 748 F.3d 723, 725 (6th Cir. 2014).
The Sixth Circuit has identified three conditions that must be met to recover
attorney=s fees under the EAJA: (1) the claimant must be a prevailing party; (2) the
government=s position must be without substantial justification; and (3) there are no
special circumstances that would warrant a denial of fees. See DeLong, 748 F.3d at
725. Plaintiff is a prevailing party under this Court’s judgment remanding this
matter to the Commissioner. See Shalala v. Schaefer, 509 U.S. 292, 298 (1993); 28
U.S.C. § 2412(d)(2)(H). Plaintiff is a financially eligible person under the EAJA. See
28 U.S.C. § 2412(d)(2)(B).
Defendant opposes an EAJA award, asserting that the government’s position
was substantially justified.

(ECF No. 34).

Defendant has the burden of

demonstrating that the government’s position was substantially justified.

See

Scarborough v. Principi, 541 U.S. 401, 414 (2004). The government’s position is
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substantially justified if it is “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 (1988). Defendant has carried her burden.
Plaintiff is not entitled to EAJA attorney’s fees simply because she obtained a
decision from this Court reversing the Commissioner’s decision and remanding the
matter for further administrative proceedings under sentence four of 42 U.S.C.
§ 405(g). See DeLong, 748 F.3d at 726; Ratliff v. Commissioner, 465 F. App’x 459, 460
(6th Cir. 2012) (“The Commissioner’s position may be substantially justified even if
it is rejected by the district court.”); Couch v. Secretary of Health & Human Servs.,
749 F.2d 359, 360 (6th Cir. 1984) (“The fact that this court finds a decision of the
Secretary not supported by substantial evidence is not equivalent to a finding that
the position of the United States was not substantially justified.”); Saal v.
Commissioner, No. 1:08-cv-347, 2010 WL 2757554, at * 2 (W.D. Mich. June 24, 2010)
(“The ALJ’s failure to meet the articulation requirements in a decision ‘in no way
necessitates a finding [that the Commissioner’s] position was not substantially
justified.’ ”) (quoting Stein v. Sullivan, 966 F.2d 317, 320 (7th Cir. 1992)).
Plaintiff asked the Court to overturn the Commissioner’s decision on the
following grounds:
1. The ALJ erred when he found that [p]laintiff’s chronic headaches are
a nonsevere impairment; more specifically, he erred when he found that
[p]laintiff has no work-related limitations related to this impairment.
2. The ALJ’s analysis of the medical opinion evidence of record, which
patently describes greater mental limitations than the ALJ found, is
contrary to Agency policy and Sixth Circuit precedent.
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3. The ALJ’s “credibility” finding is not supported by substantial
evidence for the reasons set forth above, and because [he] failed to
account for [p]laintiff’s excellent work history as part of that finding.
(ECF No. 15, PageID.931).
This case turned on the first issue. The Commissioner “acknowledge[d] that
the ALJ erred when he stated that no acceptable medical source had diagnosed
[p]laintiff with a headache disorder, as [James Tucci, M.D.,] made that diagnosis on
several occasions.” (ECF No. 16, PageID.957). But a mere diagnosis “says nothing
about the severity of the condition.” Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir.
1988).
The primary issue during oral argument was whether the conceded error was
harmless. (ECF No. 29, PageID.1003-22, 1035-42, 1047-51). Dr. Tucci did not provide
a medical source statement describing plaintiff’s functional limitations stemming
from plaintiff’s headaches. (Id. at PageID.1009-10, 1020). The Court noted that “the
record evidence relating to plaintiff’s headaches [was] somewhat of a mixed bag.” (Id.
at PageID.1055). The Court found that, on this record, it was error not to find that
the plaintiff’s headaches were a medically determinable and severe impairment. (Id.
at PageID.1056-57).

Further, the Court noted that an error at step two of the

sequential analysis can be harmless if there was an indication that the ALJ
considered the impairment or the symptoms of the impairment in determining the
plaintiff’s RFC. (Id. at 1057) (citing Maziarz v. Secretary of Health & Human Servs.,
837 F.2d 240, 244 (6th Cir. 1987) and Fisk v. Astrue, 253 F. App’x 580, 584 (6th Cir.
2007)).
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The Court observed that ALJ’s opinion was “somewhat ambiguous” in terms of
whether he considered plaintiff’s headaches in making his finding regarding
plaintiff’s RFC. Accordingly, the Court was unable to make a finding of harmless
error:
His statement on page 4 of the opinion, [PageID.38], says that he’s given
some consideration to the reported symptoms in evaluating her anxiety
disorder and medication usage below. That may mean that he
considered whether headaches warrant any sort of functional
restriction, but I can’t tell. I’ve read through the opinion a number of
times. I don’t see anything that gives me confidence that he considered
that in terms of the residual functional capacity.
***
I cannot say that it’s harmless error because I’m not satisfied that the
ALJ considered those symptoms with respect to the RFC. He might
have. There’s no indication in the opinion that he did, at least not to my
satisfaction. [The Commissioner’s attorney] may be entirely right in her
interpretation of the last sentence in that paragraph, but I need more
than an ambiguous statement to satisfy me that the error is harmless.
(Id. at PageID.1058). On the record presented, the Commissioner was substantially
justified in arguing that any error was harmless.
Although the Court found it unnecessary to decide the other issues that
plaintiff raised, the Commissioner was substantially justified in defending the ALJ’s
decision on those issues. On the second issue, the ALJ gave what appeared to be good
reasons for the weight given to Dr. Khullar’s opinions, but he neglected to provide
specific citations to evidence in the record supporting those reasons.
PageID.1058-60).

(Id. at

The third issue, plaintiff’s challenge to the ALJ’s findings

regarding her subjective complaints, was “by far [plaintiff’s] weakest issue” given the
deference courts give to such administrative findings. (Id. at PageID.1032). The
Court did not “see any basis for reversing the ALJ’s decision with respect to the
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credibility issue.” (Id. at PageID.1047).
The evidence did not strongly establish proof of disability or entitlement to DIB
and SSI benefits. The Commissioner’s decision to deny plaintiff’s claims for benefits
and to defend that denial in this Court had a reasonable basis in law and fact. See
DeLong, 748 F.3d at 726-27.
Accordingly, the Court finds that that the Commissioner’s position was
substantially justified.
ORDER
For the reasons set forth herein, plaintiff’s motion for attorney’s fees under the
EAJA (ECF No. 30) is DENIED.
IT IS SO ORDERED.
Dated: February 26, 2019

/s/ Phillip J. Green
PHILLIP J. GREEN
United States Magistrate Judge

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