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Ballatore v. Commissioner of Social Security

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

June 5, 2015



MARK A. GOLDSMITH, District Judge.


Before the Court is Plaintiff's motion for reconsideration (Dkt. 28), requesting that the Court reconsider its June 18, 2014 decision (Dkt. 26) denying Plaintiff's application for attorney fees and expenses under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. ยง 2412. In that decision, the Court adopted Magistrate Judge Charles E. Binder's Report and Recommendation ("R&R"), which recommended that the Court deny Plaintiff's application on the grounds that Defendant's position in this litigation was substantially justified. Plaintiff, through his counsel, Philip R. Fabrizio, now submits that a recent Sixth Circuit opinion, Glenn v. Commissioner of Social Security, 763 F.3d 494 (6th Cir. 2014), interprets the phrase, "substantial justification" in a manner contrary to the Court's earlier decision, requiring the Court to rethink its prior conclusion. For the reasons that follow, the Court declines to reconsider its previous determination and denies Plaintiff's motion.


This case stems from an appeal of the Commissioner of Social Security's decision to deny Plaintiff disability benefits. The case was referred to Magistrate Judge Charles E. Binder (Dkt. 2), and the parties filed cross-motions for summary judgment (Dkts. 7, 10). On October 2, 2012, the Magistrate Judge issued an R&R (Dkt. 12), which recommended denying Plaintiff's motion for summary judgment and granting Defendant's motion for summary judgment. Plaintiff subsequently raised two objections to the R&R: (i) the Administrative Law Judge ("ALJ") did not adequately consider a prior disability determination from 2005, and (ii) the ALJ did not properly apply the treating physician rule. 10/16/2012 Obj. at 6 (Dkt. 13).

Upon review of the R&R and Plaintiff's objections, the Court returned the matter to the Magistrate Judge for clarification regarding the Magistrate Judge's basis for affirming the ALJ's finding that Plaintiff's condition had materially changed and improved since the prior disability determination. 12/20/2012 Order (Dkt. 14). On January 8, 2013, the Magistrate Judge issued a second R&R, opining that Plaintiff's motion for summary judgment had not raised the issue that, absent specific findings of changed circumstances, principles of res judicata bound the ALJ to Plaintiff's prior disability determination, and therefore the Magistrate Judge had not addressed the issue in his initial R&R. 1/8/2013 R&R at 2 (Dkt. 15). Plaintiff subsequently filed objections to this second R&R, arguing that he had sufficiently raised the issue of res judicata in his opening and reply briefs. 1/9/2013 Obj. at 2 (Dkt. 16).

The Court then issued an Opinion and Order disposing of the case. In that Opinion, the Court sustained in part and overruled in part Plaintiff's objections to the first R&R, and accepted in part and rejected in part that R&R. The Court also sustained Plaintiff's objections to the second R&R, and rejected that R&R. In doing so, the Court concluded that Plaintiff sufficiently raised the issue of res judicata before the Magistrate Judge. 3/15/2013 Op. & Order at 7-8 (Dkt. 17). The Opinion stated,

Absent evidence that Plaintiff's condition improved since 2005 - a conclusion that necessarily requires discussing the status of Plaintiff's condition in 2005 - the ALJ is bound by the prior RFC determination. Therefore, the Court rejects the first and second R&Rs to the extent they suggest that the ALJ's decision that Plaintiff's condition "did materially change after June 23, 2005" applied the correct legal principles and was supported by substantial evidence.

Id. at 8-9. The Court then proceeded to overrule Plaintiff's objections relating to the ALJ's application of the treating physician rule and consideration of the medical record. Id. at 9-16. The Court concluded, "Upon remand, the ALJ shall determine whether Plaintiff's condition materially improved since the 2005 disability determination; in doing so, the ALJ shall explicitly discuss and reference the 2005 findings." Id. at 16.

Plaintiff then filed an application for attorney fees under the EAJA (Dkt. 19). The Magistrate Judge issued an R&R, which recommended that Plaintiff's application be denied on the grounds that Defendant's position was substantially justified. 11/26/2013 R&R (Dkt. 24). Plaintiff subsequently filed the following objections: (i) Plaintiff sufficiently raised the issue of res judicata in his briefing; (ii) the ALJ and Defendant's position lacked substantial justification because the ALJ's decision contained no discussion of Plaintiff's 2005 disability determination; and (iii) the fact that Defendant prevailed on some issues was not relevant to the substantial-justification determination. 12/9/2013 Obj. at 1-3, 4-5 (Dkt. 25). The Court issued an Opinion and Order, sustaining Plaintiff's objections in part and overruling Plaintiff's objections in part, and denying Plaintiff's application for attorney fees. Specifically, the Court found that, while Plaintiff had sufficiently raised the res judicata issue, the ALJ's position on the res judicata issue was substantially justified, given existing Sixth Circuit law, and that Defendant's position in the case, as a whole, was substantially justified. 6/18/2014 Op. & Order at 1-2 (Dkt. 26). This motion for reconsideration followed.


Motions for reconsideration are governed by Eastern District of Michigan Local Rule 7.1(h)(3). That Rule, in relevant part, states as follows:

Generally... the court will not grant motions for rehearing or reconsideration that merely present the same issues ruled upon by the court, either expressly or by reasonable implication. The movant must not only demonstrate a palpable defect by which the court and the parties... have been misled but also show that correcting the defect will result in a different disposition of the case.

Id. A "palpable defect" is one "which is obvious, clear, unmistakable, manifest, or plain." Mich. Dep't of Treasury v. Michalec, 181 ...

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