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Chene v. Commissioner of Social Security

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

March 3, 2017

CAROL CHENE, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION FOR AWARD OF ATTORNEY'S FEES (28)

          ANTHONY P. PATTI, UNITED STATES MAGISTRATE JUDGE

         This matter is before me for consideration of Plaintiff's motion for attorney's fees (DE 27) and Defendant's response in opposition (DE 28).[1] For the reasons that follow, Plaintiff's motion is DENIED.

         A. Procedural Background

         Plaintiff protectively filed her applications for social security disability benefits and supplemental security income on December 2, 2010, alleging that she had been disabled since June 1, 2004. (R. at 147-152, 153-157, see also R. at 54.) Plaintiff's applications were denied and she sought a de novo hearing before an Administrative Law Judge (“ALJ”). ALJ Jerome B. Blum held a hearing on April 3, 2012 and subsequently determined that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 42-77.) On March 19, 2013, the Appeals Council remanded the case to the ALJ. (R. at 78-81.) ALJ Blum held a second hearing on July 23, 2013 and subsequently determined that Plaintiff was not disabled. (R. at 28-41, 9-23.) On December 30, 2014, the Appeals Council denied Plaintiff's request for review. (R. at 1-5.)

         Plaintiff then timely commenced the instant action in federal court. In her motion for summary judgment, she set forth three statements of error: 1) that the ALJ's residual functional capacity (“RFC”) assessment was not supported by substantial evidence; 2) that the ALJ violated the procedural aspect of the treating physician rule in evaluating the medical source opinion of Dr. Peter Smith; and 3) that the ALJ failed to make a credibility determination as required by SSR 96-7p. The Commissioner opposed Plaintiff's motion, asserting that the ALJ's decision was supported by substantial evidence.

         On September 23, 2016, the Court remanded the matter back to the Commissioner for further administrative proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g) based on Plaintiff's second argument. (DE 23.) Specifically, I concluded that the weight the ALJ assigned to treating physician Dr. Peter Smith's June 21, 2013 mental RFC assessment was unclear. As to her first argument, I noted that the ALJ's credibility finding was supported by substantial evidence and sufficiently clear. As to her third argument, I concluded that she had not illustrated how she required a more restrictive limitation than that included in the ALJ's Step 4 determination. However, I noted that the RFC finding was subject to reconsideration in light of the treating physician rule error.

         B. The Instant Motion

         In the instant motion, Plaintiff seeks costs and attorney fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, because the Court remanded her case for further administrative proceedings. She asserts that the Commissioner's position in opposing his motion for remand was not substantially justified because the ALJ omitted an assignment of weight as to Dr. Smith's opinion. (DE 28 at ¶ 8.)

         The Commissioner opposes Plaintiff's motion and argues that her position was substantially justified. Specifically, she asserts that a harmless error argument was reasonable, in light of conflicting case law and no controlling precedent.

         C. STANDARD OF REVIEW

         The EAJA 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. ยง 2412(d). 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 ...


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