McCoy v. Commissioner of Social Security

Filing 29

Memorandum Opinion and Order denying Plaintiff's Application for Attorney Fees Under the Equal Access to Justice Act (EAJA) (Doc. 24 ). Magistrate Judge Kathleen B. Burke on 8/16/2017. (D,I)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
AMIE M. McCOY,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 3:15-cv-02308

MAGISTRATE JUDGE
KATHLEEN B. BURKE

MEMORANDUM OPINION
AND ORDER

Plaintiff Amie M. McCoy (“McCoy” or “Plaintiff”) filed this action for judicial review of
the Commissioner’s final decision denying her applications for social security disability benefits.
Doc. 1. On November 4, 2016, the Court reversed and remanded the decision of the
Commissioner for further proceedings consistent with the Court’s Memorandum Opinion &
Order of the same date. Doc. 22. On February 2, 2017, Plaintiff filed an Application for
Attorney Fees Pursuant to the Equal Access to Justice Act (“EAJA”), seeking $7,268.66 in
attorney fees and expenses. 1 Doc. 24. The Commissioner has opposed Plaintiff's Application
for EAJA fees, arguing that the government’s position was “substantially justified” and that
Plaintiff is therefore not entitled to an award of EAJA fees. Doc. 26. The Commissioner also
argues that Plaintiff's requested fee is not reasonable. Doc. 26.
For the following reasons, the Court DENIES Plaintiff’s Application for Attorney Fees
Under the Equal Access to Justice Act (EAJA) (Doc. 24).

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In Plaintiff’s Reply Brief, Plaintiff seeks a supplemental award for attorney fees incurred in connection with
preparation of Plaintiff’s reply in support of her request for EAJA fees. Doc. 28, p. 4. Plaintiff, in her Reply Brief,
also noted no objection to a reduction of 0.7 hours of appellate assistant hours. Doc. 28, p. 4, n.1. Thus, the total
amount requested is $7,514.03. Doc. 28, pp. 4-5.
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I. 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 (other than cases sounding in tort), including
proceedings for judicial review of agency 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 or that special
circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A).
Thus, the EAJA provides for payment of fees and expenses to the prevailing party in an
action against the United States unless the position of the United States was substantially
justified or special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A); Howard v.
Barnhart, 376 F.3d 551, 553 (6th Cir. 2004) (discussing 28 U.S.C. § 2412(d)(1)(A)).
The Commissioner does not contest that Plaintiff was the prevailing party. See Shalala v.
Schaefer, 509 U.S. 292, 300–302, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993) (party obtaining a
sentence-four judgment reversing a denial of benefits has prevailing party status under the
EAJA). In addition, the Commissioner does not argue that there are any special circumstances
that warrant the denial of attorney fees. The issues in dispute are whether the Commissioner’s
position was substantially justified and whether the fees requested by Plaintiff are reasonable.
Under the EAJA, “a position is substantially justified when it has a ‘reasonable basis both
in law and fact.’” Howard, 376 F.3d at 554 (quoting Pierce v. Underwood, 487 U.S. 552, 565,
108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)); see also DeLong v. Comm’r of Soc. Sec. Adm., 748
F.3d 723, 726 (6th Cir. 2014). 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

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S.Ct. 1856, 158 L.Ed.2d 674 (2004). Thus, the fact that the “Commissioner’s position was
unsupported by substantial evidence does not foreclose the possibility that the position was
substantially justified.” Howard, 376 F.3d at 554; see also DeLong, 748 F.3d at 726 (“[R]emand
alone is not a proper basis for the allowance of fees and expenses under the EAJA.”) (quoting
Couch v. Sec. of Health & Human Servs., 749 F.2d 359, 360 (6th Cir. 1984)(per curiam)).
The Commissioner argues that “the government’s position in this case had a reasonable
basis in law and fact despite the articulation errors in the ALJ’s decision.” Doc. 26, p. 5. The
Commissioner also points out that, although the Court remanded the case for an articulation error
at Step Five, the Court also rejected McCoy’s two alternate grounds for remand, i.e., evaluation
of state agency physicians’ opinions and assessment of GAF scores. Doc. 26, pp. 5-6. Based on
the foregoing, the Commissioner asserts that the government’s position was substantially
justified and an award of EAJA fees is not warranted. Doc. 26, p. 6.
McCoy counters that the ALJ’s error in this case was more than a mere articulation error
and the Commissioner’s position that EAJA fees are not warranted because the Court found in
the Commissioner’s favor on two other issues is not compelling and disfavored by case law.
Doc. 28, pp. 1-2. Accordingly, McCoy asserts that the Court should find that the
Commissioner’s position was not substantially justified.
The question whether the Commissioner was substantially justified is more appropriately
focused on the specific error leading to the remand, not on McCoy’s alternative arguments that
the Court concluded were not a basis for reversal or remand. See Glenn v. Comm’r of Soc. Sec.,
763 F.3d 494, 498 (6th Cir. 2014) (finding error where the district court did not determine
whether the government’s position was substantially justified but instead concluded that the
government’s position was substantially justified because the claimant raised other errors that the

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court rejected); see also Harris v. Comm'r of Soc. Sec., 2010 WL 3075486, at *2 (N.D. Ohio
Aug. 5, 2010) ([A]gree[ing] with Plaintiff that the inquiry should be focused on the specific error
necessitating the remand, not on Plaintiff’s alternative arguments . . . that [the] Court rejected.”).
In considering whether the ALJ’s decision was “substantially justified” for EAJA
purposes, courts have distinguished between remands involving “mere articulation errors” and
remands where the district court determines that the evidence does not support the ALJ’s
decision even when properly considered. See e.g., Olive v. Comm'r of Soc. Sec., 534 F.Supp.2d
756, 759-761 (N.D. Ohio 2008) (citing Anderson v. Comm'r of Soc. Sec., 198 F.3d 244, 1999
WL 1045072 (6th Cir. 1999 ) (unpublished table decision)); see also 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”) compare with
Winning v. Comm'r of Soc. Sec., 2010 WL 3222031, at *4 (N.D. Ohio Aug. 13, 2010 ) (awarding
fees where “the ALJ failed to provide substantive reasons for her decision to ignore the treating
psychologist’s opinion and because the record [did] not support the ALJ's credibility
determination.”). While distinctions have been drawn between remands for “mere articulation
errors” and remands where the district court determines that the evidence does not support the
ALJ’s decision, the relevant inquiry remains whether the Commissioner’s position had a
reasonable basis in law and fact. See DeLong, 748 F.3d at 726; Glenn v. Comm’r of Soc. Sec.,
763 F.3d 494, 499 (6th Cir. 2014).
In this case, the Court did not reverse for an award of benefits nor suggest that on remand
the Commissioner was required to conclude that McCoy was disabled. Doc. 22, pp. 30-31.
Rather, the Court found that:
Based on the unclear VE testimony and uncertainty as to whether the VE identified
jobs in response to a VE hypothetical that accurately reflected the RFC limitations
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or whether the VE was responding to a modified or alternate hypothetical, the Court
cannot determine whether the ALJ’s Step Five determination is supported by
substantial evidence. Accordingly, remand is necessary for clarification as to the
RFC limitation regarding production quotas and/or for additional VE testimony
responsive to a VE hypothetical that clearly and accurately portrays the limitations
as contained in the RFC.
Doc. 22, p. 30.
VE testimony may serve as substantial evidence in support of a Step Five determination
where the question put to the VE accurately portrays a claimant’s impairments. See Parks v.
Social Sec. Admin., 413 Fed. Appx. 856, 865 (6th Cir. 2011) (citing Ealy v. Comm’r of Soc. Sec.,
594 F.3d 504, 516 (6th Cir. 2010). Here, because of a lack of clarity with respect to the VE’s
testimony regarding production quotas, the Court concluded that further clarification by the ALJ
regarding the production quota limitation and/or additional VE testimony was necessary in order
for the Court to assess whether the ALJ’s Step Five determination was supported by substantial
evidence. Now presented with the separate question of whether the Commissioner’s position in
defending the ALJ’s decision was substantially justified, the Court finds that, notwithstanding
the lack of clarity with respect to the production quotas, the Commissioner had a reasonable
basis to defend the ALJ’s reliance on the VE’s testimony and the denial of benefits in this case.
II. Conclusion
The Court concludes that the Commissioner’s position was substantially justified.
Therefore, the Court DENIES Plaintiff’s Application for Attorney Fees Under the Equal Access
to Justice Act (EAJA) (Doc. 24).

Dated: August 16, 2017
Kathleen B. Burke
United States Magistrate Judge

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