Smathers v. Commissioner of Social Security

Filing 32

REPORT AND RECOMMENDATIONS re 26 MOTION for Attorney Fees Pursuant to EAJA filed by Tina M Smathers. It is RECOMMENDED that plaintiff's Application be denied. Objections to R&R due by 4/18/2016. Signed by Magistrate Judge Norah McCann King on 4/1/2016. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

TINA M. SMATHERS,
Plaintiff,
vs.

Civil Action 2:14-CV-500
Judge Watson
Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION

This action was instituted under the provisions of 42 U.S.C.
§§ 405(g), 1383(c) for review of a final decision of the Commissioner of
Social Security denying plaintiff’s application for supplemental security
income. On September 22, 2015, the Court reversed the decision of the
Commissioner pursuant to Sentence 4 of 42 U.S.C. § 405(g) and remanded the
matter for further consideration of whether plaintiff can perform work that
exists in significant numbers in the national economy. Opinion and Order,
ECF No. 24. This matter is now before the Court on plaintiff’s Application
for Attorney Fees pursuant to the Equal Access to Justice Act, ECF No. 26
(“Plaintiff’s Motion for Fees”), and plaintiff’s Memorandum in Support of
Application for Attorney Fees pursuant to the Equal Access to Justice Act,
ECF No. 27 (“Memorandum in Support”). The Commissioner opposes Plaintiff’s
Motion for Fees, Defendant’s Opposition to Plaintiff’s Motion for Attorney
Fees under EAJA, ECF No. 30 (“Commissioner’s Response”), and plaintiff has
filed a reply, Plaintiff’s Response to Opposition to Motion for Attorney’s
Fees under EAJA, ECF No. 31.
The Equal Access to Justice Act (“EAJA”) provides in pertinent part:

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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 ... 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). In order to recover attorney fees under the EAJA,
a plaintiff must satisfy three conditions: (1) she must be a “prevailing
party”; (2) the Government’s opposing position must have been without
substantial justification; and (3) there must be no special circumstances
that warrant denying relief. DeLong v. Comm’r of Soc. Sec., 748 F.3d 723,
(6th Cir. 2014)(citing Marshall v. Comm’r of Soc. Sec., 444 F.3d 837, 840
(6th Cir. 2006), and 28 U.S.C. §2412(d)(1)(A)).
Plaintiff requests a fee of $4,088.00, Plaintiff’s Motion for Fees,
that amount reflecting 22.4 hours of work compensated at a rate of $182.50
per hour, Memorandum in Support. The Commissioner does not deny that
plaintiff qualifies as a prevailing party, nor does the Commissioner
contend that there exist special circumstances that would render an award
under the EAJA unjust. Instead, the Commissioner contends that her position
in initially denying benefits and defending that denial before this Court
was “substantially justified” within the meaning of the EAJA. See generally
Commissioner’s Response.
The United States Court of Appeals for the Sixth Circuit has
considered the meaning of the term “substantially justified” for purposes
of the EAJA:
The
government’s
position
under
§2412(d)(1)(A)
is
“substantially justified if it is ‘justified in substance or in
the main’ –- that is, justified to a degree that could satisfy
a reasonable person.” ... [A] position can be justified even
though it is not correct, and we believe it 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

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and fact.
United States v. Real Property Located at 2323 Charms Road, 946 F.2d 437,
440 (6th Cir. 1991) (citations omitted). An order of remand pursuant to
Sentence 4 of 42 U.S.C. § 405(g) is not alone “a proper basis for the
allowance of fees and expenses under” the EAJA.

Couch v. Sec. of Health

& Human Servs., 749 F.2d 359, 360 (6th Cir. 1984)(per curiam).
The resolution of the issues presented in this case turned on the
finding

by

the

administrative

law

judge

that,

despite

her

severe

impairments, plaintiff is nevertheless able to perform a significant number
of jobs in the national economy, including such “representative occupations
. . . as a surveillance system monitor.” PAGEID 66-68.

In making this

finding, the administrative law judge relied on the testimony of the
vocational expert. However, the vocational expert initially testified that
there were 16,500 surveillance system monitor jobs nationally and 600 in
the West Virginia and Ohio region, but later “reduced the number of jobs
available as a surveillance system monitor by 50%.” See PAGEID 67-68. The
Court concluded that, “given Plaintiff’s limitations, the size of the
region at issue, and the fact that the record reflects that Plaintiff can
only perform a single job,” the finding of the administrative law judge
that plaintiff is able to perform a significant number of jobs is not
supported by substantial evidence. Opinion and Order, ECF No. 24, PAGEID
876-77. In reaching this conclusion, the Court found that the record – and
in particular the testimony of the vocational expert – was ambiguous:
“[A]bsent a clear determination of the number of available jobs, the court
cannot find that substantial evidence supports a finding that the number
of jobs is significant.” Id. at PAGEID 878.
Even though the decision of the Commissioner was reversed, this Court

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concludes that the Commissioner’s position in this action was substantially
justified within the meaning of the EAJA. Indeed, in discussing the
ambiguity

of

the

vocational

evidence

and

the

parties’

differing

interpretations of that evidence, the Court expressly characterized both
interpretations as “reasonable.” Report and Recommendation, ECF No. 19,
PAGEID 850. Under these circumstances, the Court concludes that an award
of fees pursuant to the EAJA is unwarranted.

It is therefore RECOMMENDED that plaintiff’s Application for Attorney
Fees pursuant to the Equal Access to Justice Act, ECF No. 26, be denied.

If any party seeks review by the District Judge of this Report and
Recommendation, that party may, within fourteen (14) days, file and serve
on all parties objections to the Report and Recommendation, specifically
designating this Report and Recommendation, and the part thereof in
question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1);
F.R. Civ. P. 72(b). Response to objections must be filed within fourteen
(14) days after being served with a copy thereof. F.R. Civ. P. 72(b).
The parties are specifically advised that failure to object to the
Report and Recommendation will result in a waiver of the right to de novo
review by the District Judge and of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v.
Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of Teachers, Local
231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).

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Date: April 1, 2016

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

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