Green v. Commissioner of Social Security
Filing
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Memorandum Opinion and Order: Plaintiff's Application for Payment of Attorney Fees Pursuant to the Equal Access to Justice Act (Doc. 24 ) is GRANTED in part and DENIED in part. The Court awards Plaintiff EAJA fees and expenses in the amount of $4,483.50, representing 24.4 hours at an hourly rate of $183.75. Magistrate Judge Kathleen B. Burke on 11/17/2015. (D,I)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
PAMELA J. GREEN,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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CASE NO. 1:14-cv-00358
MAGISTRATE JUDGE
KATHLEEN B. BURKE
MEMORANDUM OPINION & ORDER
Having prevailed in obtaining a reversal and remand of the Commissioner’s decision
denying her applications for Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”), Plaintiff Pamela J. Green (“Plaintiff” or “Green”) now seeks an award of
attorney fees and expenses pursuant to the Equal Access to Justice Act (the “EAJA”). Doc. 24.
As explained below, Plaintiff’s Application for Payment of Attorney Fees Pursuant to the
Equal Access to Justice Act (Doc. 24) is GRANTED in part and DENIED in part.
I. PROCEDURAL HISTORY
Green filed this action to seek judicial review of the Commissioner’s final decision
denying her application for social security disability benefits. Doc. 1. Following briefing by the
parties, on March 2, 2015, the Court reversed and remanded the final decision of the
Commissioner because the ALJ failed to comply with the treating physician rule when
evaluating the opinions of two of Green’s treating physicians. Doc. 22. On May 22, 2015,
Green filed an Application for Payment of Attorney Fees Pursuant to the EAJA seeking
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$3,913.88 (20.2 hours for Attorney Matthew J. Shupe at an hourly rate of $183.75 and 1.1 hours
for Attorney Paulette F. Balin at an hourly rate of $183.75) (“EAJA Application”). Doc. 24, p. 1,
Doc. 24-5, Doc. 24-6. On June 12, 2015, the Commissioner filed her Response. Doc. 26. The
Commissioner argues that her position was substantially justified and therefore an EAJA award
is not warranted. 1 Doc. 26, pp. 2-6. On June 15, 2015, Green filed a Reply (Doc. 27) and a
Supplement to her Application (Doc. 28). In her Supplement, Green requested an additional 3.6
hours in fees associated with filing a reply to Defendant’s opposition to her request for an EAJA
award. Doc. 28. Thus, Green seeks a total EAJA award in the amount of $4,575.38,
representing a total of 24.9 hours at an hourly rate of $183.75. 2 Doc. 24, Doc. 28.
II. DISCUSSION
A.
The EAJA Standard
The EAJA provides that,
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 Pierce v. Underwood, 487 U.S. 552, 556, 108 S. Ct. 2541, 2545,
101 L. Ed. 2d 490 (1988). Thus, a prevailing party in an action against the United States can
recover fees and expenses, unless the United States’ position was “substantially justified” or
“special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A); see Pierce, 487 U.S.
at 556. In the case at hand, Plaintiff is the prevailing party. Doc. 22; see Shalala v. Schaefer,
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Defendant also argues that, in the event that an EAJA award is made, Plaintiff’s request should be reduced by .5
hours because that amount of time was spent on administrative tasks, which Defendant asserts are not compensable.
Doc. 26, pp. 6-7.
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Of the 24.9 hours, 6.7 hours are allocated to seeking EAJA fees. Doc. 24-5, Doc. 24-6, Doc. 28-1.
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509 U.S. 292, 301, 113 S. Ct. 2625, 2631, 125 L. Ed. 2d 239 (1993) (holding that Plaintiff is the
prevailing party in a sentence four remand). The Commissioner does not contest that the
Plaintiff was the prevailing party. Nor does the Commissioner argue that any special
circumstances warrant the denial of attorney fees. Plaintiff filed her EAJA Application in a
timely manner, see 28 U.S.C. §§ 2412(d)(1)(B), 2412(d)(1)(D)(2)(B). The Commissioner does
not argue that the Plaintiff’s Application was untimely. Accordingly, the primary issue in
dispute is whether the Commissioner’s position was substantially justified. 3
B.
The Commissioner’s position was not substantially justified
Under the EAJA, “a position is substantially justified when it is ‘justified in substance or
in the main’—that is, justified to a degree that could satisfy a reasonable person.” Howard v.
Barnhart, 376 F.3d 551, 554 (6th Cir. 2004) (quoting Pierce, 487 U.S. at 565). In other words,
“a position is substantially justified when it has a ‘reasonable basis both in law and fact.’” Id.
While the burden of establishing substantial justification is on the Commissioner, there is no
presumption that the Commissioner’s position was not substantially justified simply because it
lost the case. Scarborough v. Principi, 541 U.S. 401, 414-415, 124 S. Ct. 1856, 158 L. Ed. 2d
674 (2004); Howard, 376 F.3d at 554.
The Commissioner argues that the only error found by this Court was in the ALJ’s
articulation of his reasons for discounting the treating physicians’ opinions and therefore this
Court should find the Commissioner’s position was substantially justified and deny EAJA fees.
Doc. 26, pp. 2-6.
In considering whether the Commissioner’s decision was “substantially justified” for
EAJA purposes, courts have distinguished between remands involving “mere articulation errors”
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As noted above, the Commissioner also objects to .5 hours of the time for which Green seeks an award of EAJA
fees.
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and remands where the district court determines that the evidence, even when properly
considered, does not support the ALJ’s decision or where the agency fails to follow its own rules.
Compare DeLong v. Comm’r of Soc. Sec., 748 F.3d 723, 727 (6th Cir. 2014) (holding that “an
ALJ’s failure to provide an adequate explanation for his findings does not establish that a denial
of benefits lacked substantial justification”); Harris v. Comm’r of Soc. Sec., 2010 WL 3075486,
at *2 (N.D. Ohio Aug. 5, 2010) (no attorney fees where articulation error was surrounded by an
otherwise “thorough and record-based analysis”) with McCole v. Comm’r of Soc. Sec., 2015 WL
6437209, * 3 (Oct. 20, 2015) (finding that ALJ’s error was not merely one of articulation and
“[w]here the agency fails to follow its own rules the Commissioner’s decision will not have a
‘reasonable basis in both law and fact’”); Escobar v. Colvin, 2015 WL 4041845, * 3-4 (N.D.
Ohio July 1, 2015) (recognizing that the Sixth Circuit in DeLong determined that a failure to
adequately explain findings does not establish a lack of substantial justification but concluding
that the ALJ’s error was not merely an issue of the level of articulation).
In this case, the Court concluded that there was a lack of compliance with the agency’s
own regulations: namely, a lack of compliance with the treating physician rule. Doc. 22. In
reaching this conclusion, the Court found that the ALJ clearly did not discuss the entirety of the
treating physicians’ opinions; chose to highlight only certain portions of each of the treating
physicians’ opinions; and appeared to weigh only select portions of the treating physicians’
opinions. Doc. 22, p. 38. Further, the reasoning provided by the ALJ for the weight assigned to
the treating physicians’ opinion was only cursory in nature. Doc. 22, p. 38. The Court finds that
the ALJ’s error in this case was more than a mere articulation error and the Commissioner’s
position was not substantially justified. Accordingly, an award of EAJA fees is warranted in this
case.
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C.
Reasonableness of number of hours requested
The Commissioner argues that a reduction of .5 hours is warranted for time spent by
Attorney Shupe reviewing emails from the Court. Doc. 26, pp. 6-7. The Commissioner
contends that reviewing emails from the Court is a non-compensable administrative task. In
other cases, such tasks have been found not to be compensable under the EAJA. See McCole,
2015 WL 6437209, * 4 (concluding that administrative tasks such as reviewing emails are not
compensable because such costs associated with such tasks should be included in overhead
costs); see also Killings v. Colvin, 2013 WL 1455818, *6-7 (N.D. Ohio Apr. 9, 2013) (reducing
hours for time spent reviewing court emails). Additionally, Green has not provided a basis upon
which this Court should conclude that such tasks are compensable.
In light of the foregoing, the Court finds a reduction in the number of hours is warranted
and reduces the total hours for which Green requests an EAJA award by .5 hours for time spent
by Attorney Shupe reviewing on non-compensable administrative tasks.
III.
CONCLUSION
For the foregoing reasons, Plaintiff’s Application for Payment of Attorney Fees Pursuant
to the Equal Access to Justice Act (Doc. 24) is GRANTED in part and DENIED in part.
The Court hereby awards Plaintiff EAJA fees and expenses in the amount of $4,483.50,
representing 24.4 hours at an hourly rate of $183.75.
November 17, 2015
Kathleen B. Burke
United States Magistrate Judge
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