Mitchell v. Commissioner of SSA

Filing 16

REPORT AND RECOMMENDATIONS THAT: 1. Plaintiff's Motion for Attorney Fees Under the Equal Access to Justice Act (Doc. 14 ) be GRANTED, in part, to the extent Plaintiff is entitled to an EAJA award in the total amount of $2,656.25. Plainti ff's Motion for an EAJA award totaling $3,614.84 should be DENIED;2. Defendant be directed to verify, within twenty-one days of an Order adopting this Report and Recommendations, whether or not Plaintiff owes a pre-existing debt to the Unit ed States subject to offset. If no such pre-existing debt exists, Defendant be ordered to pay the EAJA award directly to Plaintiff's counsel; and, 3. The case remains terminated on the docket of this Court. Objections to R&R due by 6/7/2012. Signed by Magistrate Judge Sharon L Ovington on 5/21/2012. (sc1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JEREMIAH MITCHELL,
Plaintiff,

:
:
Case No. 3:09cv00276

vs.

:

MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
Defendant.

:

District Judge Walter Herbert Rice
Magistrate Judge Sharon L. Ovington

:
:

REPORT AND RECOMMENDATIONS1

Plaintiff initially brought this case seeking judicial review, under the provisions of
42 U.S.C. § 405(g), of the Social Security Administration’s decision to deny his
application for Disabled Adult Child benefits – a subset of the Disability Insurance
Benefits program. The Court previously remanded the case for payment of benefits, and
the Clerk of Court entered Judgment in Plaintiff’s favor and against the Commissioner.
(Doc. #s 10, 12, 13).
The case is presently before the Court on Plaintiff’s Motion for Attorney Fees
Under the Equal Access to Justice Act (EAJA) (Doc. #14), the Commissioner’s Response
(Doc. #15), and the record as a whole. Plaintiff specifically seeks an award of attorney

1

Attached hereto is NOTICE to the parties regarding objections to this Report and
Recommendations.

fees in the amount of $3,614.84, for 21.25 hours of work before the Court at an hourly
rate of $170.11. (Doc. #14). The Commissioner contends that an award of EAJA attorney
fees is not warranted in this case. (Doc. #15). If Plaintiff is entitled to attorney fees, the
Commissioner argues such an award should not be paid directly to Plaintiff’s counsel.
(Doc. #15 at 6).
The EAJA provides attorney fees to a party who prevails in a civil action against
the United States “when the position taken by the Government is not substantially
justified and no special circumstances exist warranting a denial of fees.” Bryant v.
Comm’r of Soc. Sec., 578 F.3d 443, 445 (6th Cir. 2009) (citing 28 U.S.C. §
2412(d)(1)(A)). In the present case, Plaintiff became the prevailing party when he
obtained a reversal and remand for payment of benefits. See Shalala v. Schaefer, 509
U.S. 292, 300-302 (1993). The parties’ dispute thus focuses on whether the
Government’s position in support of the ALJ’s decision was substantially justified. See,
e.g., Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541 (1988)
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.” Pierce, 487 U.S. at 565, 108 S.Ct. 2541. Stated otherwise, a
position is substantially justified when it has a “reasonable basis both in law
and fact.” Id. The fact that . . . the Commissioner’s position was
unsupported by substantial evidence does not foreclose the possibility that
the position was substantially justified. See id. at 569, 108 S.Ct. 2541;
Jankovich v. Bowen, 868 F.2d 867, 870 (6th Cir. 1989). Indeed, “Congress
did not . . . want the ‘substantially justified’ standard to ‘be read to raise a
presumption that the Government position was not substantially justified
simply because it lost the case. . . .’” Scarborough [v. Principi, 541 U.S.
401, 415, 124 S.Ct. 1856, 1866 (2004)] (quoting Libas, Ltd. v. United
States, 314 F.3d 1362, 1365 (Fed. Cir. 2003)).
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Howard v. Barnhart, 376 F.3d 551, 554 (6th Cir. 2004). The Government bears the
burden of establishing that its position was substantially justified. Scarborough, 541 U.S.
at 414-15, 124 S.Ct. at 1865-66. In the present case, the Government argues its position
was substantially justified because “[i]n finding that Plaintiff was not disabled, the ALJ
provided sufficient reasons why he did not rely on the opinions of Dr. Rahman and Dr.
Gibeau.” (Doc. #15). In support, the Government also notes “[t]he ALJ explained that he
reasonably gave these opinions little weight because they were not supported by any
clinical data and were inconsistent with school records,” and that “the ALJ did not rely on
Dr. Rahman’s opinion because his notes contain little information about Plaintiff’s
condition, and, do not even contain the results of a mental status examination.” (Id. at 3).
The Government argues that “[d]espite the Courts’s conclusion for remanding this case,
the ALJ’s decision did not employ an improper methodology.” (Id. at 5). Nonetheless,
the Government also notes that “[t]he ALJ did not connect all the dots in parts of his
analysis and did not fully explain some of his findings.” (Id.). Plaintiff argues “[t]he
ALJ’s decision was not only unsupported by substantial evidence, but was unreasonable.”
(Doc. #14 at 3). Plaintiff further notes that “the ALJ placed little or no weight on the
opinions of Plaintiff’s treating psychiatrist, Dr. Rahman, or on the opinions of the onetime evaluating psychologist, Dr. Gibeau.” (Id.). In addition, Plaintiff contends “[t]he
ALJ essentially took Plaintiff’s testimony out of context and misinterpreted it to cast
doubt on Dr. Rahman’s opinions,” and that “[t]hese were serious errors that make the
ALJ’s decision unreasonable.” (Doc. #14 at 4).
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Although, as the Government acknowledges, “[t]he ALJ did not connect all the
dots in parts of his analysis and did not fully explain some of his findings,” he failed to do
much more as well. The ALJ’s decision was not vacated simply because of issuing a
decision which failed to connect “all the dots” or “fully explain some of his findings,” but
because it was inconsistent with Social Security Regulations, Rulings, and relevant case
law. So much so, as the Plaintiff notes, this Court concluded “the evidence of disability is
overwhelming or, at the very least, strong, while contrary evidence is weak,” and
determined remand for the payment of benefits to be proper. (Doc. #12 at 5). On
numerous occasions the ALJ selected portions of the record which supported his nondisability decision and ignored, or overlooked, evidence consistent with the opinions of
Plaintiff’s treating psychiatrist, Dr. Rahman, or the one-time evaluating psychologist, Dr.
Gibeau.
The Court previously explained:
The ALJ “essentially follow[ed] the recommendations” of Dr. Schulz, who
examined Plaintiff for the Ohio BDD, and Drs. Flynn and Hoyle, who reviewed
the record at the Ohio BDD’s request. (Tr. 26). The ALJ gave “considerable
weight” to the opinions of these non-treating medical sources, finding their
opinions “consistent for the most part with the clinical data and descriptive
information about the claimant’s level of function in typical activities.” (Tr. 26).
In contrast, the ALJ placed little or no weight on the opinions of Plaintiff’s
treating psychiatrist, Dr. Rahman, or on the opinions the one-time evaluating
psychologist, Dr. Gibeau. (Tr. 24). The ALJ explained, “ the opinions of those
doctors [Drs. Rahman and [Gibeau] are given little weight as they are poorly
supported by any consistent clinical data and are clearly inconsistent with school
records, the more realistic report of Dr. Schulz, or even the claimant’s own
testimony.” (Tr. 24). The ALJ also wrote:

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“All-in-all, the evaluations by Dr. Gibeau and Dr. Rahman which
suggest the claimant is incapable of any work due to serious emotional
problems (depression and anxiety) are totally lacking in credibility as they
are poorly supported clinically, and inconsistent with other substantial
evidence, including this individual’s own statements about his emotional
health. Likewise, based on this record, it is found that he does not have a
‘severe’ impairment in the form of depression or anxiety disorder. Neither
controlling nor deferential weight is accorded to the opinions of Dr. Gibeau
and Dr. Rahman.
(Tr. 25). The ALJ later observed:
“Generally, the opinions of Dr. Schulz and the [Ohio] BDD
reviewing psychologists are entitled to considerable weight as they
are consistent for the most part with the clinical data and descriptive
information about the claimant’s level of function in typical
activities. However, the moderate restrictions with respect to
concentration, persistence, or pace, are found to be warranted in
view of the history of developmental delays and academic problems
(even if some of these problems have largely been a matter of his
low motivation).”
(Tr. 26-27). The ALJ additionally wrote:
As already noted, the above restriction, moderate in nature,
give the claimant a good deal of benefit of doubt and are quite
generous in comparison to the basically not severe degree of
impairment indicated by Dr. Schulz and the [Ohio] BDD reviewing
psychologists (notwithstanding that the assessments of Dr. Schulz
and the [Ohio] BDD reviewing psychologists are much more realistic
than the grim but poorly supported opinions of Dr. Gibeau and Dr.
Rahman.”
(Tr. 28).
The ALJ fails to state what evidence in the record actually supports the
findings of Dr. Schulz and that of the Ohio BDD reviewers, and he fails to even
mention or give reasons for rejecting the objective clinical evidence – such as
Plaintiff’s school records, intelligence testing, achievement testing, and personality
testing (as discussed further below) – that supported the findings and opinions
provided by Plaintiff’s treating specialist, Dr. Rahman, and by examining
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psychologist, Dr. Gibeau. The ALJ’s reasoning does not refer to specific evidence,
instead referring to broad categories of evidence such as “school records” (Tr. 24)
and making broad observations such his finding that Dr. Rahman’s opinions were
“poorly supported clinically” without discussing what led him to that conclusion.
“[A] failure to follow the procedural requirement of identifying the reasons for
discounting the opinions and for explaining precisely how these reasons affected
the weight accorded the opinions denotes a lack of substantial evidence, even
where the conclusion of the ALJ may be justified based upon the record.” Rogers,
486 F.3d at 243 (quoting in part Wilson, 378 F.3d at 544) (internal punctuation
omitted). Indeed, “Even when inconsistent with other evidence, a treating source’s
medical opinions remain entitled to deference and must be weighed using the
factors provided in 20 C.F.R. §404.1527 and 416.927. Put simply, it is not enough
to dismiss a treating physician’s opinion as ‘incompatible’ with other evidence of
record; there must be some effort to identify discrepancies and to explain why it is
the treating physician’s opinion gets the short end of the stick.” Friend v.
Commissioner of Soc. Sec., unpublished dec., 2010 WL 1725066 at *8 (6th Cir.,
April 4, 2008)(citing Blakley, 581 F.3d at 408)(other citation omitted).
“‘In the absence of an explicit and reasoned rejection of an entire line of
evidence, the remaining evidence is ‘substantial’ only when considered in
isolation. It is more than merely ‘helpful’ for the ALJ to articulate reasons ... for
crediting or rejecting particular sources of evidence. It is absolutely essential for
meaningful appellate review.’”
Hurst v. Secretary of HHS, 753 F.2d 517, 519 (6th Cir. 1985) (quoting Zblewski v.
Schweiker, 732 F.2d 75, 78 (7th Cir. 1984)).
The Commissioner contends that the ALJ provided good reasons for not
relying on the opinions of Dr. Rahman and Dr. Gibeau. The Commissioner
reasons:
“The ALJ explained that he reasonably gave these opinions little
weight because they were not supported by any clinical data and were
inconsistent with school records (Tr. 24). In addition, the ALJ did not rely
on Dr. Rahman’s opinion because his notes contain little information about
Plaintiff’s condition, and, in fact, do not even contain the results of a mental
status examination (Tr. 24, 421-38). Where a physician’s conclusion
regarding a claimant’s capacity contains no substantiating medical data or
other evidence, the ALJ is not required to credit such opinions.”
(Doc. #8 at 68). These contentions overlook the need for an ALJ to specify the
6

evidence that supported his assessment of the medical source opinions rather than
rejecting those opinions by referring to broad categories of evidence. See Hurst v.
Secretary of HHS, 753 F.2d at 519; see also Friend, 2010 WL 1725066 at *8; 20
C.F.R. §416.927 (“We will always give good reasons in our notice of
determination or decision for the weight we give your treating source’s
opinions.”).
In addition, the ALJ overlooked the similarity between Plaintiff’s testimony
and Dr. Rahman’s opinions. The ALJ essentially took Plaintiff’s testimony out of
context and misinterpreted it to cast doubt on Dr. Rahman’s opinions. He wrote:
“Remarkably, the claimant’s testimony raised a lot of doubts about
the treatment relationship with Dr. Rahman. He testified that he could not
identify any emotional problems. He said that he did not know why he was
seeing Dr. Rahman or even who sent him to that psychiatrist. He was not
even sure that he had seen this doctor even when the ALJ reminded him that
his was a doctor with Indian ethnicity….”
(Tr. 24).
Rather than conflicting with Dr. Rahman’s opinions, as the ALJ found,
Plaintiff’s testimony tends to confirm his cognitive and adaptive difficulties.
Plaintiff testified that he did not know who sent him to Dr. Rahman or why he saw
him and that his mother was “the one who knows all of it.” (Tr. 477). Plaintiff
explained that he saw many people and that he did not know which one was Dr.
Rahman. (Tr. 478). ALJ Padilla asked Plaintiff about seeing an “Indian doctor by
the name of Dr. Rahman.” Id. Plaintiff answered that he did not know. Id. When
asked by his attorney, Plaintiff stated that he was not sure what being an Indian
doctor meant. (Tr. 485).
Plaintiff’s lack of understanding about his treatment with Dr. Rahman was
consistent with the clinical evidence in the record. For example, Dr. Gibeau – who
performed numerous objective psychological tests on Plaintiff – found that his
fund of information was poor and that a twenty-four point discrepancy between his
Verbal and Performance IQ scores indicated “greatly uneven mental functioning.”
(Tr. 415). These findings, moreover, were consistent with testing done by Xenia
Community Schools in 1997. See Tr. 110, 123.
In addition, Dr. Gibeau reported that Plaintiff’s “long term verbal memory
was significantly below average and he had great difficulty in the recall of names,
dates, and events.” (Tr. 416). Based on testing, Dr. Gibeau noted that Plaintiff’s
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“knowledge of verbal meanings was significantly below average and there should
be problems in both his receptive and expressive communication…. Overall, his
performance was indicative of better performance than verbal skills with problems
in communication, reasoning, attention/concentration, recall of information,
making decisions and forming new associations.” Id. Dr. Gibeau reported that
Plaintiff did not understand why he was being evaluated, and he did not understand
what “sexual abuse” meant. (Tr. 412-13). Plaintiff’s testimony during the ALJ’s
hearing similarly revealed that he did not understand the word “disability.” (Tr.
474). An interviewer for the Ohio BDD noted that Plaintiff “clearly didn’t
understand everything that was asked and relied upon his mother to answer for
him.” (Tr. 147).
The results of the intelligence testing administered by Dr. Gibeau were
consistent with school testing. This supports the indication in Plaintiff’s testimony
that he has significant, if not severe, cognitive deficiencies in understanding verbal
communication. Dr. Gibeau, moreover, wrote that Plaintiff’s performance on the
intelligence testing was “indicative of better performance than verbal skills with
problems in communication, reasoning, attention/concentration, recall of
information, making decisions, and forming new associations.” (Tr. 416).
Achievement testing demonstrated that Plaintiff was in the developmentally
handicapped range. Id. Questions on personality testing revealed:
His clinical personality pattern indicates a long term depression,
beliefs of inadequacy, feelings of worthlessness, and low self-esteem..... He
exhibits a disregard for the rights of others and for society in general. He
can show periods of being belligerent, intimidating and domineering in his
behavior toward others…. He exhibits a pervasive pattern of negativistic
attitudes and passive resistance to demands for adequate performance. He
is likely to complain of being misunderstood and unappreciated by others.
He may alternate between hostile defiance and contrition…. He is slow to
make decisions without the advice and reassurance of others. He has
difficulty doing things on his own because of a lack of selfconfidence….
(Tr. 417).
Returning to Dr. Schulz, the ALJ credited his opinions by observing that
Dr. Schulz’s assessment was supported by the clinical and objective evidence.
Without any meaningful explanation as to why the ALJ believed Dr. Schulz’s
assessment deserved “considerable weight,” his decision is unmoored from
substantial supporting evidence.

8

To the extent the ALJ relied on the opinions of two non-examining, recordreviewing Ohio BDD medical sources (Drs. Flynn and Hoyle) as grounds for
crediting Dr. Schulz’s opinions, the ALJ’s decision is not supported by substantial
evidence. This is so because these non-treating medical sources reviewed the
record and formed their opinions in April 2005 and September 2005, before the
later-written reports and opinions of Drs. Rahman and Gibeau. See Sherman v.
Heckler, 821 F.2d 316, 321 (6th Cir. 1987); see also Harris v. Heckler, 756 F.2d
431, 435 (6th Cir. 1985).
Lastly, the ALJ also relied on Plaintiff’s ability to engage in certain daily
activities as another reason for rejecting Dr. Rahman’s and Dr. Gibeau’s opinions.
The ALJ recognized that Plaintiff engaged in a wide range of leisure activities,
including using a “computer, surfing the NET, playing video games, watching
television and movies, socializing, riding a bike, and listening to music.” Id. The
ALJ additionally noted that Plaintiff’s school records “actually suggest about
average reading skill, notwithstanding his seemingly difficult time with
academics.” Id. The ALJ noted that poor motivation may be a large factor in
Plaintiff’s “apparently limited” academic skills. (Tr. 26). Yet in support of this,
the ALJ repeatedly remarked throughout his decision, see Tr. 23, 24, 26, 28, that
Plaintiff’s school records indicated he could conform to authority and be wellbehaved, citing to one remark in Plaintiff’s March 2004 Individualized Education
Plan. See Tr. 133. The ALJ ignored or overlooked that other information found in
Plaintiff’s Individual Education Plan was consistent with the opinions of Drs.
Rahman and Gibeau.
When assessing Plaintiff’s need for special education at age eighteen, the
school evaluation team reported that he had “exhibited difficulty learning in a
traditional school setting for most of his academic career.” (Tr. 122). He had also
“exhibited difficulties maintaining interpersonal relationships with peers and
others throughout his academic career.” Id. He “becomes angry, aggressive and
obstinate when he becomes frustrated with tasks that are part of the daily routine
such as attending school and participating appropriately.” Id. In light of such
evidence, the ALJ erred by picking and choosing portions of the record which
supported his non-disability decision rather while ignoring or overlooking
evidence consistent with the opinions of Drs. Rahman and Gibeau. See Loza v.
Apfel, 219 F.3d 378, 393 (5th Cir. 2000)(“ALJ must consider all the record
evidence and cannot ‘pick and choose’ only the evidence that supports his
position.”); Switzer v. Heckler, 742 F.2d 382, 385-86 (7th Cir. 1984); Kuleszo v.
Barnhart, 232 F.Supp.2d 44, 57 (S.D.N.Y. 2002). Moreover, the ALJ’s failure to
account for the evidence confirming the opinions of Drs. Rahman and Gibeau
constituted the same type of error described in Howard v. Commissioner of Soc.
9

Sec., 276 F.3d 235 (6th Cir. 2002):
“[T]he ALJ’s selective inclusion of only those portions of the report
that cast Howard in a capable light suggests that he only considered part of
the report in formulating his conclusion that Howard ‘need[s] to perform
work of a simple and relatively nonstressful nature.’ As a result, we
conclude that the RFC does not accurately describe Howard’s abilities and
that the ALJ’s decision, which is based upon it, is not supported by
substantial evidence.
276 F.3d at 240-41.
(Doc. #10 at 18-26).
The ALJ’s selective inclusion of the record in this case is clear. As previously
noted, the ALJ overlooked or ignored numerous portions of the record which were
consistent with the opinions of Dr. Rahman and Dr. Gibeau, yet selected portions of the
record supporting his non-disability decision. Such an error deprives the Government’s
defense of the ALJ’s decision of a reasonable basis in fact and law. The Commissioner,
therefore, has not met his burden of establishing that his support for the ALJ’s decision
was substantially justified or that an EAJA award to Plaintiff will be unjust. Howard, 376
F.3d at 554 (“Under the circumstances of this case, where the administrative law judge
was found to have selectively considered the evidence in denying benefits, we hold that
the Commissioner’s decision to defend the administrative law judge's denial of benefits is
without substantial justification.”).
Accordingly, Plaintiff is entitled to an EAJA award.
An additional issue remains that must be addressed by this Court: Plaintiff’s
counsel seeks to increase the $125 hourly rate set by Congress in 1996 to $170.77 per
10

hour for work performed. Counsel states that “[a]ttached is information from the United
States Department of Labor, showing the increase in the cost of living in this area since
March 1996, to make the hourly rate of $170.11 per hour.” (Doc. #14 at 4). Attached to
Plaintiff’s Motion is also a list of the services Plaintiff’s counsel performed in this case,
adding up to 21.25 hours of attorney work. (Doc. #14-1 at 1).
“In requesting an increase in the hourly-fee rate, Plaintiffs bear the burden of
producing appropriate evidence to support the requested increase. Plaintiffs must
‘produce satisfactory evidence – in addition to the attorney’s own affidavits – that the
requested rates are in line with those prevailing in the community for similar services by
lawyers of reasonably comparable skill, experience, and reputation.” Bryant, 578 F.3d at
450 (internal citation omitted). “In accordance with the Sixth Circuit decision in Bryant,
the submission of the Consumer Price Index, standing alone, is insufficient to satisfy the
burden of proving that the higher hourly rate requested by counsel is justified.” Douglas
v. Astrue, Commissioner of Social Sec., 2012 WL 931100 at *2 (S.D. Ohio, March 19,
2012)(Rice, D.J.). Counsel has offered no affidavit or other evidence showing that the
requested rate is “‘in line with those prevailing in the community for similar services
offered by lawyers of reasonably comparable skill, experience, and reputation . . . .’” Id.
(quoting Bryant, 578 F.3d at 450). Plaintiff’s counsel, therefore, has not met her burden
of showing that the increase she requested in the statutory cap of $125 per hour is
warranted. See id.
Accordingly, Plaintiff is entitled to an EAJA award of attorney fees calculated as
11

follows: 21.25 (hours of attorney work) x $125 = $2,656.25.
Plaintiff’s counsel requests payment of an EAJA award directly to her, and has
attached an assignment of fees from Plaintiff. (Doc. #14-1 at 2). Defendant argues
payment of any fees awarded should not be made directly to Plaintiff’s counsel, and that
“the government will evaluate the propriety of directing payment to the attorney pursuant
to an assignment.” (Doc. #15 at 7). Defendant’s opposition is based on Ratliff v. Astrue,
__ U.S. __, 130 S.Ct. 2521, 2524 (2010), in which the Court held that a Ҥ2412(d) fees
award is payable to the litigant and is therefore subject to a Government offset to satisfy a
pre-existing debt that the litigant owes the United States.” In so holding, the Court
recognized that historically the Commissioner paid EAJA fees directly to a prevailing
plaintiff’s attorney. __ U.S. at __, 130 S.Ct. at 2528-29. The Court further noted that,
based on the record before it, “the Government has since continued the direct payment
practice only in cases where the plaintiff does not owe a debt to the [G]overnment and
assigns the right to receive the fees to the attorney.” Id. at 2529 (internal quotation marks
omitted).
Defendant has not currently placed into the record any evidence tending to show
that Plaintiff, in fact, owes a pre-existing debt to the United States that might cause his
EAJA award to be subject to an offset under Ratliff. As the Defendant effectively
acknowledges that it does not know whether Plaintiff owes a pre-existing debt to the
federal government at this time, no ripe Ratliff issue currently exists. This conclusion is
confirmed by Ratliff itself, where the government sought an EAJA offset based on its
12

knowledge that the plaintiff owed it a debt that pre-dated the district court’s approval of
the EAJA award. 130 S.Ct. at 2424-25. In the present case, the Commissioner appears to
lack such knowledge, and accordingly, there is no ground for the Commissioner to avoid
or delay honoring Plaintiff’s assignment of his EAJA fees to counsel. Cf. Ratliff, __ U.S.
at __, 130 S.Ct. at 2530 (“the litigant’s obligation to pay her attorney is controlled not by
the EAJA but by contract and the law governing that contract.”) (Sotomayer, J.,
concurring).
IT IS THEREFORE RECOMMENDED THAT:
1.

Plaintiff’s Motion for Attorney Fees Under the Equal Access to Justice Act
(Doc. #14) be GRANTED, in part, to the extent Plaintiff is entitled to an
EAJA award in the total amount of $2,656.25. Plaintiff’s Motion for an
EAJA award totaling $3,614.84 should be DENIED;

2.

Defendant be directed to verify, within twenty-one days of an Order
adopting this Report and Recommendations, whether or not Plaintiff
owes a pre-existing debt to the United States subject to offset. If no such
pre-existing debt exists, Defendant be ordered to pay the EAJA award
directly to Plaintiff’s counsel; and,

3.

The case remains terminated on the docket of this Court.

May 21, 2012

s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within fourteen (14) days after
being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d),
this period is extended to seventeen days because this Report is being served by one of
the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such
objections shall specify the portions of the Report objected to and shall be accompanied
by a memorandum of law in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an
oral hearing, the objecting party shall promptly arrange for the transcription of the record,
or such portions of it as all parties may agree upon or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise directs. A party may respond to
another party’s objections within fourteen days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See United States v. Walters, 638 F. 2d 947 (6th Cir. 1981); Thomas v. Arn, 474
U.S. 140 (1985).

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