Walker v. Commissioner of Social Security
Filing
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Memorandum Opinion and Order: Plaintiff's application for Equal Access to Justice Act attorney fees (Doc. No. 17 ) is granted. The Court will, by separate order, enter an award of $3,866.50, subject to the provisions of Astrue, supra. Judge Sara Lioi on 11/30/2016. (P,J) Modified text on 11/30/2016 (H,KR).
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
GRETCHEN L. WALKER,
PLAINTIFF,
vs.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
DEFENDANT.
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CASE NO. 1:15-cv-1234
JUDGE SARA LIOI
MEMORANDUM OPINION
AND ORDER
Before the Court is the motion of plaintiff Gretchen L. Walker (“Walker” or “plaintiff”)
for an award of attorney fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d)
(“EAJA”). (Doc. No. 17.) The Acting Commissioner of Social Security (“Commissioner” or
“defendant”) has filed a brief in opposition (Doc. No. 18) and plaintiff filed a reply (styled as a
“response to opposition”). (Doc. No. 19). For the reasons discussed herein, the motion is granted.
I. BACKGROUND
Walker filed the instant action on June 19, 2015, seeking review of the Commissioner’s
denial of her applications for period of disability (“POD”), disability insurance benefits (“DIB”)
and supplemental security income (“SSI”). (Doc. No. 1.) On December 28, 2015, the Court
adopted the expressly unopposed1 Report and Recommendation (“R&R”) of the magistrate
judge, reversing the Commissioner’s decision and remanding the case, under sentence four of 42
U.S.C. § 405(g), for further proceedings consistent with the R&R. (Doc. No. 16.)
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See Doc. No. 15.
Walker moves for attorney fees in the amount of $3,496.50, representing 18.9 hours of
service provided by Attorney Linda S. Pettit, at an hourly rate of $185.00.2 The Commissioner
opposes the request, arguing that the government’s position during the administrative
proceedings was substantially justified.
II. DISCUSSION
The EAJA requires the government to pay a prevailing social security plaintiff’s
attorney’s fees and costs “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); Pierce v. Underwood, 487 U.S. 552, 556, 108 S. Ct. 2541, 101 L. Ed. 2d 490
(1988); Howard v. Barnhart, 376 F.3d 551, 553 (6th Cir. 2004).
Defendant’s opposition to the motion includes no challenge to plaintiff’s prevailing party
status, or to the number of hours or the hourly rate, or to the total fees sought. 3 Defendant’s only
argument is that the government’s position was “substantially justified,” which requires a
showing that it was “justified to a degree that could satisfy a reasonable person.” Pierce, 487
U.S. at 565. A position can be justified “even though it is not correct, and … can be substantially
(i.e., for the most part) justified if a reasonable person could think it correct, that is, if it has a
reasonable basis in law and fact.” Id. at 566, n. 2. “[Remand] alone is not a proper basis for the
allowance of fees and expenses under the [EAJA].” Couch v. Sec’y of HHS, 749 F.2d 359, 360
(6th Cir. 1984). Defendant bears the burden of establishing that her position was substantially
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In the reply brief, plaintiff requests $4,088, presumably due to the fact that a reply brief was required. She states
that she will supply a supplemental EAJA application and itemized time sheet (Reply at 887), but has not done so.
(All references to page numbers are to the page identification numbers generated by the Court’s electronic docketing
system.)
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Defendant asserts that any fees awarded must be paid to plaintiff directly, not to her attorney. In the reply brief,
plaintiff supplies an assignment of EAJA fees to her attorney. (Doc. No. 19-1.) The reply also recognizes that any
payment would first be subject to setoff if plaintiff has any outstanding federal debt. (Doc. No. 19 at 886, citing
Astrue v. Ratliff, 560 U.S. 586, 130 S. Ct. 2521, 177 L. Ed. 2d 91 (2010).)
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justified. Irizarry v. Colvin, No. 1:13-cv-02161, 2015 WL 3755978, at *3 (N.D. Ohio June 16,
2015) (citations omitted). “Plaintiff is presumptively entitled to attorney’s fees unless the
government can meet its burden[.]” Olive v. Comm’r of Soc. Sec., 534 F. Supp. 2d 756, 758
(N.D. Ohio 2008).
Defendant relies on Gray v. Comm’r of Soc. Sec., 23 F. App’x 436 (6th Cir. 2001),
asserting that it stands for the proposition that attorney fees are not warranted where a case is
remanded for further proceedings, not to award benefits. In Gray, a magistrate judge
recommended affirming the Commissioner’s decision to deny benefits, but the district court
rejected that recommendation and remanded the case for further proceedings due to an error of
law. The Sixth Circuit affirmed the district court’s denial of EAJA fees, concluding that the
differing conclusions of the two judicial officers suggested that “a reasonable person could
believe that the denial of benefits was correct.” Id. at 437. The Court is not persuaded that Gray
offers guidance here.
The instant case is more akin to Irizarry, where the ALJ “failed to address altogether”
certain social functioning limitations assigned by one of the plaintiff’s physicians. “[N]othing in
the ALJ’s decision explained the omission of those limitations from Plaintiff’s RFC.” Irizarry,
2015 WL 3755978 at *4. This failure “violated a well-established rule,” id., and “resulted in … a
substantive error that rendered this issue unreviewable[.]” Id. As a result, the court concluded in
Irizarry that the Commissioner’s position was not substantially justified and plaintiff was entitled
to EAJA fees.
Similarly, in this case, the R&R concluded, with no objections from either party and with
this Court’s agreement, that the ALJ had reached a decision to deny benefits without properly
completing the legal analysis at Step Three by applying SSR 12-2p. The ALJ seemed to have
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simply ignored the possible effect of plaintiff’s fibromyalgia and failed to determine whether it
medically equaled a listing or combined with another impairment to equal a listing. As correctly
argued by plaintiff in her reply brief, “the ALJ failed to follow the Commissioner’s only Social
Security Ruling pertaining to the evaluation of fibromyalgia.” (Reply at 885.) Without that
required analysis, one cannot conclude that the government’s position to deny benefits was
“substantially justified.” Plaintiff is, therefore, entitled to EAJA fees.
As already noted, defendant does not challenge the hours, the rate, or the total amount of
fees. The Court, too, finds no fault in plaintiff’s request in that respect, other than to note that she
has not offered any evidentiary justification for the increased total requested in the reply brief.
The difference in the two requests suggests that counsel devoted a little more than 3 hours to
drafting the reply brief. The Court will allow only 2.0 hours, given the brevity of the brief, the
very limited additional substance that it offered to the analysis, and the lack of any evidence to
substantiate 3 hours. Therefore, the Court will award $3,496.50 (18.9 hours @ $185/hr), plus
$370.00 (2.0 hours @ $185/hr), for a total of $3,866.50.
Defendant also asserts that, if EAJA fees are granted, payment must be made to plaintiff,
not to the attorney. But plaintiff has supplied an assignment of EAJA fees that addresses this
challenge and permits payment to the attorney with proper setoffs in place. 4 The Court shall
order accordingly.
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See, Astrue v. Ratliff, 560 U.S. 586, 130 S. Ct. 2521, 177 L. Ed. 2d 91 (2010) (holding that EAJA fees are payable
to the plaintiff and are subject to setoff if the plaintiff has outstanding federal debts and recognizing that the payment
could be made directly to a plaintiff’s attorney only in cases where the plaintiff both owes no debt to the government
and had assigned any right to EAJA fees to the attorney).
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III. CONCLUSION
For the reasons set forth herein, plaintiff’s application for EAJA attorney fees (Doc. No.
17) is granted. The Court will, by separate order, enter an award of $3,866.50, subject to the
provisions of Astrue, supra.
IT IS SO ORDERED.
Dated: November 30, 2016
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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