Smith v. Commissioner of Social Security

Filing 27

ORDER granting 22 Motion for Attorney Fees. Signed by Judge Algenon L. Marbley on 2/26/2010. (cw)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION Charles E. Smith, Plaintiff, v. Commissioner of Social Security, Defendant. : : : : : ORDER On September 21, 2009, the Court entered judgment sustaining the plaintiff's statement of errors and remanding this case to the Commissioner for further proceedings pursuant to 42 U.S.C. §405(g), sentence four. Act, 28 U.S.C. §2412. filed. Plaintiff subsequently moved for an award of attorneys' fees pursuant to the Equal Access to Justice Responsive and reply memoranda have been For the following reasons, plaintiff's motion will be Case No. 2:08-cv-0648 JUDGE MARBLEY

granted, and plaintiff will be awarded fees in the amount of $3,462.26. The Equal Access to Justice Act, 28 U.S.C. §2412, provides, in pertinent part, that the Court shall award to a prevailing party other than the United States attorneys' fees and expenses "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." The party seeking an award of such fees and expenses is required to submit a fee application to the court within 30 days of the date that the judgment became final and non-appealable. The application must demonstrate that the party is a prevailing party and is eligible to receive a fee award. It must also document the amount sought, including an itemized statement from

the attorney or attorneys involved, and must allege that the position of the United States was not substantially justified. The court is then required to determine, on the basis of the record, whether the position of the United States was substantially justified. Attorneys' fees are limited to the rate of $125.00 per hour "unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee." Once a petition has been filed alleging that the position of the United States was not substantially justified, the United States has the burden of demonstrating such justification. See Miller v. United States, 831 F. Supp. 1347, 1351 (M.D. Tenn. 1993) ("The burden lies with the government to demonstrate that its position was substantially justified ...."); Weber v. Weinberger, 651 F.Supp. 1379, 1388 (E.D. Mich. 1987) ("with respect to an application for attorney's fees the Government has the burden of showing that its position was substantially justified."); see also Howard v. Heckler, 581 F. Supp. 1231, 1233 (S.D. Ohio 1984). The question of whether the United States' position is substantially justified is determined based upon the standards set forth in Pierce v. Underwood, 487 U.S. 552 (1988). In Pierce, the Court concluded that the phrase "substantially justified" as used in the EAJA means justified "to a degree that could satisfy a reasonable person." Pierce, supra, at 565. As the Court noted, that test "is no different from the 'reasonable basis both in law and fact' formulation adopted by the Ninth Circuit and the vast majority of other Courts of Appeals that have addressed this issue." Id., citing, inter alia, Trident Marine Construction, Inc. v. District Engineer, 766 F.2d 974 (6th Cir. 1985). An agency decision that is not supported by substantial evidence may still be one that has a reasonable basis -2-

in law and fact. 1989).

Jankovich v. Bowen, 868 F.2d 867 (6th Cir.

Consequently, this Court is required to apply the

"reasonable basis in law and fact" test set forth in Trident Marine Construction to this application for attorneys' fees. Both the Report and Recommendation filed by the Magistrate Judge, and the order of the Court adopting that Report and Recommendation, pointed out two flaws in the administrative decision. First, the Commissioner asked the medical expert to assess plaintiff's residual functional capacity without reference to plaintiff's pain, even though the record as a whole and the testimony of the medical expert indicated both that plaintiff's underlying conditions could reasonably be expected to cause pain and that his pain was the factor that most significantly limited his activities. Second, when the Commissioner undertook to evaluate the extent to which plaintiff's subjective complaints were credible, he merely recited the applicable law without explaining how, if at all, the required considerations were applied to the facts of this case. The combination of these errors led the Commissioner to find that plaintiff's residual functional capacity was essentially that testified to by the medical expert, which capacity did not, at the Commissioner's specific request, take plaintiff's pain into account. The Commissioner's position in this case has consistently been that there was no need to ask the medical expert to evaluate plaintiff's pain because the decision of how much weight to give to the plaintiff's subjective reports of pain is reserved to the Commissioner. The Commissioner then points to various portions of the record which supposedly support the finding that these reports were not credible. The Court previously found that these arguments did not demonstrate that the Commissioner's decision was supported by substantial evidence. The Court now finds that these arguments -3-

were also not substantially justified.

There was simply no Both regulations and

reasonable basis upon which to argue that plaintiff's pain was adequately taken into account in this case. controlling case law set forth the method and the factors to be applied in evaluating subjective complaints of pain, and the administrative decision was clearly deficient in applying these factors. Further, no one could reasonably argue that this is a Given the residual case where that deficiency was unimportant.

functional capacity attributed to plaintiff by the medical expert without consideration of plaintiff's pain, had the Commissioner ascribed any additional limitations to plaintiff based on his pain, he would likely have been found to be disabled. Finally, there is substantial merit to plaintiff's argument that, to the extent that the administrative decision did purport to analyze plaintiff's subjective complaints of pain, it represented a very selective reading of the record, which was replete with medical evaluations ascribing severe restrictions to that pain. Nevertheless, the Commissioner continued to argue that the Administrative Law Judge had made an adequate credibility finding. In short, it should have been apparent to a reasonable Because that is person that the administrative proceedings were sufficiently deficient that a remand was going to be ordered. justified. The Commissioner makes no other argument in opposition to the motion for attorneys' fees. The number of hours expended on this case appears to be reasonable, and the hourly rate calculation contained in plaintiff's opening memorandum has not been challenged. amount requested. For the foregoing reasons, plaintiff's motion for an award of attorneys' fees under the Equal Access to Justice Act (#22) is -4Therefore, the Court will award fees in the so, the Commissioner's litigation position was not substantially

GRANTED.

Plaintiff is awarded the sum of $3,462.26, to be paid

within thirty days.

s/Algenon L. Marbley Algenon L. Marbley United States District Judge

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