Miller v. Comm'r of Soc. Sec.

• Decision Date: 17 September 2018
• Docket Number: CIVIL ACTION NO. 13-cv-11748
• Citation: 346 F.Supp.3d 1018
• Parties: Ronald MILLER, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

346 F.Supp.3d 1018

Ronald MILLER, Plaintiff,

v.COMMISSIONER OF SOCIAL SECURITY, Defendant.

CIVIL ACTION NO. 13-cv-11748

United States District Court, E.D. Michigan, Southern Division.

Signed September 17, 2018

D. Rick Martin, Ronald D. Glotta, Glotta Assoc., Detroit, MI, for Plaintiff.

Alison Schwartz, Marc Boxerman, Niranjan Emani, Social Security Administration Office of Regional Counsel, Chicago, IL, Laura A. Sagolla, U.S. Attorney's Office, Detroit, MI, for Defendant.

REPORT AND RECOMMENDATION

MONA K. MAJZOUB, UNITED STATES MAGISTRATE JUDGE

Plaintiff Ronald Miller filed this action seeking judicial review of Defendant's decision denying his application for Social Security benefits under 42 U.S.C. § 405(g). (Docket no. 1.) The Sixth Circuit Court of Appeals ordered that the matter be remanded to Defendant for further administrative proceedings. Miller v. Comm'r of Soc. Sec. , 811 F.3d 825 (6th Cir. 2016). Before the Court are Plaintiff's Motions for Attorney Fees and Expenses Pursuant to the Equal Access to Justice Act (EAJA). (Docket nos. 34, 42.) Defendant responded to Plaintiff's Motions (docket nos. 40, 46), and Plaintiff replied to Defendant's Responses (docket nos. 41, 47). Also before the Court is Plaintiff's Attorney's Motion for an Award of Attorney Fees Under 42 U.S.C. § 406(b). (Docket no. 43.) Defendant did not respond to this Motion, and the time for doing so has passed. The Motions have been referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (Docket nos. 35, 44.) The undersigned has reviewed the pleadings, dispenses with a hearing pursuant to Eastern District of Michigan Local Rule 7.1(f)(2), and issues this Report and Recommendation.

I. RECOMMENDATION

For the reasons that follow, it is recommended that (1) Plaintiff's first Motion for Attorney Fees and Expenses Pursuant to the EAJA (docket no. 34) be GRANTED IN PART and that Plaintiff be awarded $14,946.00 in attorney fees and expenses; (2) Plaintiff's second Motion for Attorney Fees and Expenses Pursuant to the EAJA (docket no. 42) be DENIED ; and (3) Plaintiff's Attorney's Motion for an Award of Attorney Fees Under 42 U.S.C. § 406(b) (docket no. 43) be GRANTED IN PART and that Plaintiff's attorney be awarded $20,342.44 in attorney fees.

II. REPORT

A. Procedural History

Plaintiff protectively filed Title II and Title XVI applications for a period of disability, disability insurance benefits, and supplemental security income on May 1, 2006, alleging disability beginning February 1, 2006, due to "left/leg/knee/foot problems." (TR 201, 326-37 358.) The Social Security Administration denied Plaintiff's claims on July 22, 2006, and Plaintiff filed a timely request for a de novo hearing. (TR 196-97, 222-24.) On June 6, 2008, Plaintiff appeared with a representative and testified at the hearing before Administrative Law Judge (ALJ) Kathryn D. Burgchardt. (TR 161-94, 209.) In a December 1, 2008 decision, the ALJ found that Plaintiff was not entitled to benefits because he was capable of performing a significant number of jobs in the national economy. (TR 201-09.) The Appeals Council reviewed and vacated ALJ Burgchardt's decision on the basis that the decision did not contain an adequate evaluation of Plaintiff's mental impairments

; the ALJ's assessment of Plaintiff's residual functional capacity (RFC) was not consistent with the record evidence and/or made in accordance with the Social Security Regulations; and the decision did not explain how Plaintiff could perform the jobs set forth by the vocational expert (VE) with the limitations listed in Plaintiff's RFC. (TR 211-13.) The Appeals Council remanded Plaintiff's case to an ALJ with instructions to resolve the above-cited issues by obtaining physical and mental consultative examinations for Plaintiff, further develop Plaintiff's vocational abilities, and obtain updated medical records and evidence from a medical expert as appropriate. (TR 212-13.)

On remand, Plaintiff appeared with a representative and testified at a hearing before ALJ Oksana Xenos on August 10, 2011. (TR 131-60.) In a September 7, 2011 decision, ALJ Xenos found that Plaintiff was not entitled to benefits because he was capable of performing a significant number of jobs in the national economy. (TR 116-26.) The Appeals Council declined to review ALJ Xenos's decision (TR 1-7), and Plaintiff filed a timely complaint for judicial review.

Plaintiff then filed a Motion for Summary Judgment (docket no. 15), and Defendant filed a cross-Motion for Summary Judgment (docket no. 20). On February 17, 2015, the undersigned recommended that Plaintiff's Motion be granted in part, Defendant's Motion be denied, and that the matter be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). (Docket no. 23.) The District Judge subsequently issued an order on March 24, 2015 adopting in part and rejecting in part the Report and Recommendation, denying Plaintiff's Motion, granting Defendant's Motion, and dismissing Plaintiff's cause of action with prejudice; the Judge also entered a judgment in favor of Defendant. (Docket nos. 26, 27.) Plaintiff appealed, and on January 29, 2016, the Sixth Circuit Court of Appeals vacated the judgment of the district court with instructions to remand the matter to the Commissioner for further proceedings. Miller , 811 F.3d 825. On remand, in a November 15, 2016 decision, ALJ Joy Turner found that Plaintiff had been under a disability as defined in the Social Security Act since February 1, 2006, the alleged onset date. (Docket no. 43-2 at 7-13.)

Plaintiff has filed two Motions for Attorney Fees and Expenses, seeking a total of $41,448.11 in fees and $1,468.85 in expenses under the EAJA. (Docket nos. 34, 42.) Plaintiff's counsel has also filed a Motion seeking an award of $27,123.25 in attorney fees under 42 U.S.C. § 406(b). (Docket no. 43.) These three Motions are currently pending before the court.

B. Law and Analysis

1. EAJA Fees

The EAJA provides that a court will award attorney fees and expenses to a prevailing party (other than the United States) in any civil action brought against the United States, unless the court finds that the position of the government was substantially justified or that special circumstances exist that would make an award unjust. 28 U.S.C. § 2412(d)(1)(A). The Act also provides that the attorney fees awarded may not be at a rate of more than $125.00 per hour, unless the court determines that an increase in the cost of living, or some other special factor, justifies a higher fee. § 2412(d)(2)(A). The parties do not dispute that Plaintiff filed his first Motion for EAJA fees in a timely manner in accordance with § 2412(d)(1)(B) or that Plaintiff is a prevailing party under § 2412. See Shalala v. Schaefer , 509 U.S. 292, 300-301, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993). Defendant does contend, however, that the government's position in this matter was substantially justified, that Plaintiff's second Motion for EAJA fees is untimely, and that even if an award of fees is appropriate, Plaintiff's requested fees are excessive. (Docket nos. 40, 46.)

a. Whether Defendant's Position was Substantially Justified

The proper standard for determining whether the government's position was substantially justified is "whether the [g]overnment's position was justified, both in fact and in law, to a degree that could satisfy a reasonable person." Jankovich v. Bowen , 868 F.2d 867, 869 (6th Cir. 1989) (citing Pierce v. Underwood , 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) ). The government bears the burden of making such a showing. Scarborough v. Principi , 541 U.S. 401, 416, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004). "The fact that th[e] court finds a decision of the Secretary not supported by substantial evidence is not equivalent to a finding that the position of the United States was not substantially justified." Couch v. Sec'y of Health & Human Servs. , 749 F.2d 359, 360 (6th Cir. 1984) ; see also Anderson v. Comm'r of Soc. Sec. , No. 98-6284, 1999 WL 1045072, at *5 (6th Cir. Nov. 12, 1999) [ 198 F.3d 244 (Table) ] (unpublished per curium) ("[A]lthough there may be flaws in an ALJ's decision, which require a reversal of the denial of benefits and a remand for further consideration, this does not automatically mean that the Commissioner's decision to defend the ALJ's decision to deny benefits was not ‘substantially justified.’ "). Likewise, "[w]hile a string of losses or successes may be indicative of whether a position is substantially justified, ‘the fact that one other court agreed or disagreed with the Government does not establish whether its position was substantially justified.’ " Howard v. Barnhart , 376 F.3d 551, 554 (6th Cir. 2004) (quoting Pierce , 487 U.S. at 569, 108 S.Ct. 2541 ).

In reviewing whether the government's position was substantially justified, the Sixth Circuit has drawn a distinction between cases in which the ALJ's decision was vacated based on a procedural error, e.g. , insufficient articulation, and cases in which the ALJ's decision was vacated on substantive grounds:

[R]emand on procedural grounds may result in yet another denial of benefits, and we might well sustain such a denial on appeal. Accordingly, we hold that an ALJ's failure to provide an adequate explanation for his findings does not establish that a denial of benefits lacked substantial justification. A fully justified position may be poorly explained, and remand may be the most appropriate vehicle for elucidating that position. Thus, although remand on any ground theoretically may support an award of fees under the EAJA, such an award is not appropriate when nothing about the specific remand at issue implies a lack of substantial justification.

DeLong v. Comm'r of Soc. Sec. Admin. , 748 F.3d 723, 727 (6th Cir. 2014) ; see also Anderson , 198 F.3d 244, 1999 WL 1045072, at *4 ("The issue, when considering an award of attorney's fees to a prevailing pa...