Gross v. Comm'r of Soc. Sec., Case No. 2:16-cv-10365

KRISTEN JO GROSS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

Case No. 2:16-cv-10365

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

March 14, 2018

Magistrate Judge Anthony P. Patti

OPINION AND ORDER GRANTING PLAINTIFF'S APPLICATION FOR ATTORNEYS' FEES UNDER THE EAJA (DE 35)

I. BACKGROUND

A. Procedural Background

Plaintiff, Kristen Jo Gross, filed her application for disability insurance (DI) benefits on March 19, 2013, alleging that she has been disabled since February 13, 2013. (R. at 31.) Plaintiff's application was denied and she sought a de novo hearing before an Administrative Law Judge ("ALJ"). ALJ Melody Paige held a hearing on October 30, 2014, and subsequently determined that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 31-86.) On December 19, 2015, the Appeals Council denied Plaintiff's request for review. (R. at 1-4.) ALJ Paige's decision became the Commissioner's final decision.

Plaintiff then timely commenced the instant action in federal court. In her motion for remand, she set forth three statements of error: (1) that the ALJ violated the treating source rule; (2) that the ALJ erred in her consideration of Plaintiff's credibility; and (3) that the ALJ erred by relying upon an incomplete hypothetical to the vocational expert. (DE 17.) The Commissioner opposed Plaintiff's motion and filed a motion for summary judgment, asserting that substantial evidence supports the ALJ's decision. (DE 20.) Plaintiff filed a reply brief in support of her motion to remand. (DE 22.) The parties consented to my authority (DE 13), and a hearing was held on March 17, 2017, at which Plaintiff's counsel and Defendant's counsel appeared by telephone.

On March 28, 2017, the Court issued an Opinion and Order granting Plaintiff's motion to remand, denying Defendant's motion for summary judgment, and remanding the case to the Commissioner and the ALJ under Sentence Four of § 405(g) for further consideration. Gross v. Comm'r of Soc. Sec., 247 F.Supp.3d 824 (E.D. Mich. 2017). While the Court held that the ALJ did not err in discounting Plaintiff's credibility, and that Plaintiff waived her argument with respect to the ALJ's reliance on the hypothetical to the vocational expert at Step 5, as to the first issue, it concluded that, although the ALJ did not err in discounting the opinion of Plaintiff's treating physician, substantial evidence did not support the ALJ's residual functional capacity (RFC) determination because there is insufficient support for the ALJ's findings, and the factual issues have not been resolved. Gross, 247 F.Supp.3d at 827-830. Specifically, the Court noted that the ALJ's RFC assessment must be supported by substantial evidence and not merely the ALJ's own medical interpretation of the record. Id. at 829. The ALJ here formulated the RFC without the benefit of any opinion evidence and instead "pointed to her own experience as a nurse and implied an expertise beyond that of an adjudicator." Id. at 830. The Court explained that this is not a case "where the medical evidence shows relatively little physical impairment, such that the ALJ can make a commonsense judgment about Plaintiff's functional capacity" without the aid of opinion evidence. Id. Ultimately, the Court concluded that "[t]he RFC determination in this action is not supported by substantial evidence" and that "[a] remand is necessary to obtain a proper medical source opinion and for the redetermination of Plaintiff's RFC." Id.

B. The Instant Motion

In the instant motion, Plaintiff seeks attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, in an amount of $7,7301.71, consisting of 37.9 attorney hours at $187.09/hour ($7090.71) and 8 paralegal hours at $80/hour ($640.00). (DE 35-1 at 3.) In her reply brief, Plaintiff requests an additional two hours ($374.18) for "time spent drafting this EAJA reply as the Commissioner threatened all fees," bringing the total request to $8,104.89. (DE 37 at 7.) In support of this request, Plaintiff alleges that Defendant's position was "not substantially justified" "because the ALJ played doctor and guessed at Plaintiff's RFC without expert guidance." (DE 35-7 at 3.) In addition, Plaintiff argues that "the ALJ as a lay person is not qualified to interpret the raw medical data into functional terms" and that "the ALJ rendered an unsupported physical RFC based upon his [sic] own lay opinion." (DE 35-7 at 3-5.)

The Commissioner opposes Plaintiff's application and argues that her position was substantially justified for three reasons. First, she contends that she reasonably relied on the Social Security regulations and the Sixth Circuit's decision in Rudd v. Commissioner of Social Security, 531 F. App'x 719 (6th Cir. 2013), which she asserts are inconsistent with Plaintiff's position that an RFC must be based on a doctor's opinion. (DE 36 at 3-6.) Second, she contends that the Court remanded "for lack of articulation" and "[a]rticulation errors do not result in EAJA fees." (Id. at 6.) Third, she asserts that she raised a number of issues, and the Court found the Commissioner's position correct on all of these issues but one, and thus her "litigation position was justified 'in the main,' and EAJA fees are not appropriate." (Id. at 7.)

Plaintiff filed a reply arguing again that the Commissioner's position cannot be substantially justified because the RFC determination relied on the ALJ playing doctor. (DE 37 at 5.) She further argues that "the formulation of an RFC based upon raw medical data could never be an articulation error, because the ALJ[,] as a lay person, could never on remand correct or further explain as to how raw medical data translates into functional terms given that they do not have [sic] a medical degree." (Id. at 6.) Further, Plaintiff contends that the Sixth Circuit in Glenn v. Commissioner of Social Security, 763 F.3d 494 (6th Cir. 2014), refuted the Commissioner's position that that "the counting of issues should matter." (Id. at 7.) Plaintiff concludes that "remand was inevitable because the ALJ played doctor and had no support for an RFC that harmfully rendered Plaintiff not disabled." (Id.)

II. STANDARD OF REVIEW

"In separate provisions, the EAJA allows a prevailing party other than the United States to recover fees and expenses incurred 'in any civil action' brought by or against the United States, 28 U.S.C. § 2412(d)(1)(A), or in an 'adversary adjudication' conducted by an agency of the United States, 5 U.S.C. § 504." Tri-State Steel Const. Co., Inc. v. Herman, 164 F.3d 973, 977 (6th Cir.1999). Plaintiff filed the instant request pursuant to 28 U.S.C. § 2412, which provides, in pertinent part:

[A] court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection

(a), 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). A district court has broad discretion when determining whether fees should be awarded under the EAJA, and its decision will only be overturned if it abuses its discretion. Pierce v. Underwood, 487 U.S. 552, 559 (1988); Marshall v. Comm'r of Soc. Sec., 444 F.3d 837, 840 (6th Cir. 2006). Applying the foregoing authority, an award of fees requires that: 1) the plaintiff was the prevailing party; 2) the government's position was not substantially justified; and, 3) no special circumstances make an award of fees unjust.

A party is considered to have prevailed where it has been the victor in a lawsuit or has "vindicated important rights through a consent judgment." Citizens Coal. for Block Grant Compliance, Inc. v. City of Euclid, 717 F. 2d 964, 966 (6th Cir. 1983) (internal quotation marks omitted). The court will generally confer prevailing-party status on a plaintiff who has won a Sentence 4 remand. Sec'y v. Schaefer, 509 U.S. 292, 300 (1993). Here, neither party disputes Plaintiff's status as the prevailing party. Likewise, the Commissioner does not articulate a basis for finding that any "special circumstances" would make an award of fees unjust, nor does the Court so find.

Instead, the parties dispute whether the Commissioner's position was "substantially justified." (DE 35-7 at 2-6; DE 36 at 3-7.) The Commissioner bears the burden of establishing that her position was substantially justified. E.W. Grobbel Sons, Inc. v. NLRB, 176 F.3d 875, 878 (6th Cir. 1999). As the Sixth Circuit has explained, "[t]he 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 at 494, 498 (6th Cir. 2014). "The Commissioner's position may be substantially justified even if a district court rejects it." DeLong v. Comm'r of Soc. Sec., 748 F.3d 723, 725 (6th Cir. 2014) (citing Couch v. Sec'y of Health & Human Servs., 749 F.2d 359, 360 (6th Cir. 1984)). Stated otherwise, "the fact that the Commissioner's decision was found to be supported by less than substantial evidence 'does not mean that it was not substantially justified.'" Hutchinson v. Comm'r of Soc. Sec., No. 12-CV-11337, 2014 WL 2050859, at *4 (E.D. Mich. May 17, 2014) (quoting Bates v. Callahan, 124 F.3d 196, 196 (6th Cir. 1997)). However, "objective indicia such as a string of losses can be indicative." Glenn, 763 F. 3d at 498 (citing Pierce, 487 U.S. at 569).

III. ANALYSIS

A. Whether the Commissioner's Position was Substantially Justified

As stated above, the Commissioner bears the burden of establishing that her position was substantially justified. DeLong, 748 F.3d at 725-726...