Moss v. Commissioner of Social Security
AMENDED REPORT AND RECOMMENDATIONS - IT IS THEREFORE RECOMMENDED THAT: 1. Plaintiff's Motion For Attorney Fees Under the Equal Justice Act, 28 U.S.C. § 2412(d) (Doc. # 23 ) be granted, in part, and denied, in part; 2. The Commissioner be ordered to pay Plaintiffs attorney fees in the total amount of $6,678.63; and 3. The case remain terminated on the docket of this Court Objections to R&R due by 5/4/2017. Signed by Magistrate Judge Sharon L. Ovington on 4/19/2017. (srb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
Case No. 3:14cv00383
CAROLYN W. COLVIN,
Commissioner of the Social
District Judge Walter H. Rice
Magistrate Judge Sharon L. Ovington
AMENDED REPORT AND RECOMMENDATIONS1
The Court previously entered Judgment in favor of Plaintiff and remanded this social
security case to the Social Security Administration for further proceedings. (Doc. #s 18,
19). The case is presently before the Court on Plaintiff=s Motion For Attorney Fees Under
The Equal Access to Justice Act (EAJA), 28 U.S.C. ' 2412(d) (Doc. #23), the
Commissioner=s Response (Doc. #24), Plaintiff’s Reply (Doc. #25), and the record as a
whole. Plaintiff seeks an award of attorney fees under the EAJA in the total amount of
$7,007.83. The Government opposes the proposed EAJA award on the ground that its
decision to defend Administrative Law Judge (ALJ) Elizabeth A. Motta’s non-disability
decision was reasonable and, therefore, substantially justified.
Attached hereto is NOTICE to the parties regarding objections to this Report and Recommendations.
“The purpose of the EAJA is to remove financial obstacles to challenging
unreasonable government action. The EAJA provision for fees specifies that ‘a court shall
award’ attorney fees and other expenses to a prevailing party, including a Social Security
claimant, in civil litigation against the United States government, ‘unless the court finds that
the position of the United States was substantially justified or that special circumstances
make an award unjust.’” Minor v. Comm’r of Soc. Sec., 826 F.3d 878, 881 (6th Cir. 2016)
(quoting, in part, 28 U.S.C. § 2412(d)(1)(A)) (other citations omitted). “The government’s
position 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. Glenn v. Comm’r of Soc. Sec.,
763 F.3d 494, 498 (6th Cir. 2014) (quoting, in part, Pierce v. Underwood, 487 U.S. 552, 565
(1988); see Howard v. Barnhart, 376 F.3d 551, 554 (6th Cir. 2004).
The Commissioner carries the burden to establish that her litigation position—
supporting ALJ Motta’s decision—was substantially justified. Delong v. Comm’r of Soc.
Sec., 748 F.3d 723, 725-26 (6th Cir. 2014). The Commissioner may meet this burden by
showing that her support of ALJ Motta’s decision rested on “‘a reasonable basis in both law
and fact.’” Glenn, 763 F.3d at 498 (quoting Pierce, 487 U.S. at 565).
The Commissioner asserts that the EAJA is not an automatic fee-shifting statute and
that a prevailing party is not presumed to be entitled to an EAJA award. These assertions
are correct in the sense that a prevailing party’s success in obtaining “‘a remand alone is not
a proper basis for the allowance of fees and expenses under the EAJA.’” Id. at 726 (6th Cir.
2014) (brackets and citation omitted). Yet, upon deeper reflection, the lack of either
automatic fee-shifting or a presumed entitlement to EAJA fees is minimally significant for
two reasons. First, the Commissioner carries the burden to establish that her decision to
support ALJ Motta’s non-disability determination was substantially justified. See id. at 72526. The absence of automatic fee-shifting or presumed entitlement to EAJA fees does not
change or minimize her burden. Second, Magistrate Judge Stephanie K. Bowman has
cogently and convincingly concluded:
Precedent … supports the exercise of discretion in favor of award of
EAJA fees in the vast majority of social security cases involving
remands in the Sixth Circuit. See, e.g., Turner v. Comm'r of Soc. Sec.,
680 F.3d 721, 724 (6th Cir. 2012) (discussing policy reasons in favor of
the award of EAJA fees based upon remand orders alone); see also,
Glenn v. Comm'r of Soc. Sec., 763 F.3d 494, 499 (6th Cir. 2014)
(reversing denial of EAJA fees as abuse of discretion where remand was
based on substantive rather than procedural error, including a selective
consideration of the evidence and errors that “were plainly contrary to
law.”); Bass v. Colvin, 120 F. Supp.3d 697 (N.D. Ohio 2015)
(Commissioner’s position opposing remand not substantially justified
due to error-ridden RFC determination, notwithstanding court's rejection
of some errors); Cowart v. Comm'r of Soc. Sec., 795 F. Supp.2d 667, 670
(W.D. Mich. 2011) (rejecting argument that based upon statement in
opinion remanding that “there is medical evidence in this record that
might support a finding of non-disability,” because “to accept the
Commissioner's reasoning would be inconsistent with the rule that a
plaintiff who wins a Sentence Four remand is a ‘prevailing party,’ and
thus entitled to EAJA fees, without regard to whether he or she
ultimately prevails on remand.”); Pyatt v. Comm'r of Soc. Sec., 771 F.
Supp.2d 891, 898-902 (S.D. Ohio 2011) (finding Commissioner’s
defense of clear procedural error, and alternative contention that the error
was harmless, was not substantially justified).
Stacey v. Comm’r of Soc. Sec., 2016 WL 3079130, at *4 (S.D. Ohio 2016), Report &
Recommendation adopted by Stacey v. Comm’r of Soc. Sec., 2016 WL 3058298 (S.D. Ohio
2016) (Beckwith, D.J.).
The Commissioner contends that her decision to support ALJ Motta’s decision was
substantially justified because this Court agreed with one of the Commissioner’s main
arguments—namely, that substantial evidence supported the ALJ’s weighing of treating
physician Dr. Shaw’s opinions. This contention lacks merit. The Commissioner’s success
in convincing both the undersigned judicial officer and District Judge Rice to accept the
ALJ’s assessment of Dr. Shaw’s opinion falls short of establishing substantial justification.
“Obviously, the fact that one other court agreed or disagreed with the Government does not
establish whether its position was substantially justified.” Pierce v. Underwood, 487 U.S.
552, 569 (1988); see Howard v. Barnhart, 376 F.3d 551, 554 (6th Cir. 2004).
The Commissioner also contends that although the Court found error in the ALJ’s
assessment of Plaintiff’s credibility, the presence of this single error supports the
Government’s assertion of substantial justification. This contention understates the flaws
District Judge Rice identified in the ALJ’s decision. District Judge Rice found that the ALJ
did not reasonably consider Plaintiff’s daily activities. He explained:
[A]lthough ALJ Motta purported to incorporate some of Plaintiff’s
subjective complaints of depression and anxiety into Plaintiff’s RFC,
Doc. #6-2, PAGEID #54, she did not adequately explain how she
incorporated those complaints into her RFC limitations….
(Doc. #22, PageID #982). In addition to finding error in the ALJ’s assessment of Plaintiff’s
credibility, District Judge Rice identified error in the ALJ’s “fail[ure] to take into account
the limitations of those state agency examining and consulting psychologists to whom she
gave deferential weight.” (Doc. # 18, PageID # 962; Doc. #22, PageID # 980). He
reasoned, “ALJ Motta’s failure to build a logical bridge between the opinions and the RFC
meant that the RFC was not supported by substantial evidence, and, thus, could not form the
basis for a finding of non-disability.” (Doc. #22, PageID # 983 (citations omitted)). And,
Judge Rice explained further:
Drs. Bonds, Hoyle and Lewin all opined that Plaintiff would do best in a
setting where she could work alone, and that she could tolerate, at most,
limited interactions with others. ALJ Motta did not adequately explain
how such marked limitation were accounted for in an RFC that would
require Plaintiff to interact with both coworkers and the general public
for up to two hours per day. Similarly, the portion of the RFC limiting
her to “simple, repetitive tasks … with no strict production quotas or fast
pace,” does not, on its face, incorporate Dr. Hoyle’s opinion that Plaintiff
was incapable of handling even a consistent pace.
(Doc. #22, PageID #985 (citations omitted)). Given such problems in ALJ Motta’s
decision, the Commissioner’s view of her decision as contains a single error is incorrect.
The Commissioner raises the related argument that the ALJ reasonably found
Plaintiff’s daily activities were inconsistent with the alleged extent of her limitations. In
support of this, the Commissioner relies on the Report and Recommendation’s analysis.
But, District Judge Rice rejected this part of the Report and Recommendations by expressly
determining that the ALJ did not reasonably consider Plaintiff’s daily activities. (Doc. #22,
PageID # 981). The different analysis and conclusions between the Report and
Recommendations and District Judge Rice’s Decision “does not establish whether [the
Commissioner’s] position was substantially justified.” Pierce, 487 U.S. at 569 (1988); see
Howard, 376 F.3d at 554.
Accordingly, for the above reasons, the Commissioner has not met her burden of
showing that her position in support of ALJ Motta’s decision was substantially justified.
Amount of EAJA Fees
The Commissioner contends that Plaintiff’s requested amount of EAJA fees should
be reduced by purely administrative work performed by counsel. Such administrative work,
according to the Commissioner, amounts to 4.25 hours or $799.55 in excessive fees.
Plaintiff disputes each of the Commissioner’s proposed reductions.
The Commissioner contends that the time entries for docketing performed by
Plaintiff’s counsel document a total of 1.5 hours of administrative tasks. Plaintiff counters
that the entries highlighted by the Commissioner represent not mere docketing “but instead
also include the filing of documents, the receipt/review of significant, substantive case
materials such as the Answer, the administrative transcript, and documents related to service
of process.” (Doc. #25, PageID # 1026). Review of the six time entries challenged by the
Commissioner during the time period in question (11/5/2014 to 1/16/2015) shows little, if
any, information beyond docketing or related administrative tasks. The EAJA award should
therefore be reduced by 1.5 hours or $282.20 ($188.13 x 1.5). See Karns v. Astrue, 2012
WL 1185990, at *3 (S.D. Ohio 2012) (Ovington, M.J.) Report & Recommendation adopted
by Karns v. Astrue, 2012 WL 1463546 (S.D. Ohio 2012) (Rose, D.J.).
Plaintiff’s EAJA award is not subject to a further .5-hour reduction for work done on
8/24/2015 related to the Commissioner’s effort to obtain an extension of time. The
Commissioner contends that the Government should not have to pay $90 to seek an
extension of time. This overlooks that the effort to obtain an extension of time required
Plaintiff’s counsel to review the Commissioner’s Motion to determine whether to oppose it.
Yet, on 8/24/2105, Plaintiff’s counsel also spent .25 hours in connection with the Notation
Order related to the Commissioner’s Motion for Extension of Time. Allocating fifteen
minutes to reading the Notation Order was excessive when it should have reasonably taken
counsel a matter of seconds, or certainly no more than a minute at most, to read the Notation
Order. Her request for fees should therefore be reduced by .25 hours or $47 ($188.13 x .25)
for time spent reviewing the Notation Order.
Lastly, the Commissioner contends that the Government should not be charged with
the purely clerical or secretarial tasks Plaintiff’s counsel performed by writing nine letters to
Plaintiff (on 11/5/14, 1/8/15, 3/9/15, 5/21/15, 7/21/15, 8/31/15, 10/28/15, 12/21/15, and
6/16/16). Rather than being purely clerical or secretarial, letters between counsel and
Plaintiff are reasonably assumed to involve significant and/or privileged information. The
time Plaintiff’s counsel spent in connection with the letters was not excessive.
In sum, Plaintiff’s total requested amount of EAJA fees, $7007.83, should be reduced
by a total of $329.20 ($282.20 + 47). Plaintiff’s EAJA award should therefore be $6,678.63
($7007.83 – $329.20).
IT IS THEREFORE RECOMMENDED THAT:
Plaintiff=s Motion For Attorney Fees Under the Equal Justice Act, 28 U.S.C. §
2412(d) (Doc. #23) be granted, in part, and denied, in part;
The Commissioner be ordered to pay Plaintiff’s attorney fees in the total
amount of $6,678.63; and
The case remain terminated on the docket of this Court.
April 19, 2017
s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge
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. 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 (14) 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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