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Gushen v. Commissioner of Social Security

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

August 15, 2017

PATRICK GUSHEN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER DENYING PLAINTIFF'S PETITIONS FOR ATTORNEY FEES (ECF ## 35, 38, 39)

          MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE

         In March of 2014, the Social Security Administration (the “SSA”) denied Plaintiff Patrick Gushen's applications for disability benefits. Gushen challenged the denial of benefits in this Court. On February 23, 2017, the Court (1) ruled in favor of Gushen on the ground that the Commissioner of Social Security (the “Commissioner”) failed to make certain required findings and (2) remanded the case to the Commissioner for further proceedings.

         Gushen has now petitioned the Court for his attorney fees under the Equal Access to Justice Act (the “EAJA” or “Act”), 28 U.S.C. § 2412. (See ECF ## 32, 35, 38, 39) As explained below, the Court concludes that Gushen is not entitled to an award of attorney fees under the Act.

         I

         A

         On November 7, 2013, and July 9, 2014, respectively, Gushen filed applications for Social Security disability insurance benefits and supplemental security income (the “Applications”) with the SSA. (See Admin. R., ECF #13-5 at Pg. ID 186, 200.) On March 28, 2014, the SSA denied the Applications on the ground that Gushen was not disabled. (See Admin. R., ECF #13-4 at Pg. ID 122-125.)

         Gushen then filed a written request for a hearing before an Administrative Law Judge (an “ALJ”). (See Id. at Pg. ID 141-152.) Before the hearing, Gushen submitted a memorandum in which he argued that he was disabled and entitled to benefits because “he suffers from a somatoform disorder” as defined in Listing 12.07 of the Commissioner's Listing of Impairments (“Listing 12.07”). (See Id. at Pg. ID 179-182.) At the June 17, 2015, hearing, Gushen's attorney reiterated to the ALJ that Gushen “meets [L]isting 12.07.” (ECF #13-2 at Pg. ID 77.)

         On September 4, 2015, the ALJ issued a written decision denying Gushen's claim for benefits. (See Id. at Pg. ID 55-66.) In that decision, the ALJ discussed only whether Gushen's condition satisfied Listing 12.04 (titled “Affective Disorders”) and Listing 12.06 (titled “Anxiety-related Disorders”). (See id.) The ALJ did not address whether Gushen's condition satisfied Listing 12.07 even though Gushen twice brought this listing to the ALJ's attention. The ALJ ultimately concluded that Gushen was not disabled because “there are jobs that exist in significant numbers in the national economy that [Gushen] can perform.” (Id. at Pg. ID 65.)

         B

         On January 3, 2016, Gushen filed this action challenging the SSA's denial of benefits. (See Compl., ECF #1.) Gushen and the Commissioner then filed cross-motions for summary judgment. (See Pl.'s Mot. Summ. J., ECF #15; Def.'s Mot. Summ. J., ECF #19.) The Court referred the cross-motions to the assigned Magistrate Judge.

         The cross-motions raised a number of issues, but the Magistrate Judge invited the parties to narrow the issues prior to oral argument. (See Report and Recommendation, ECF #21 at Pg. ID 610-611.) Gushen's counsel then notified the Magistrate Judge that Gushen wished to proceed solely on his claim that the ALJ committed a reversible error by failing to consider whether his impairments met Listing 12.07. (See ECF #24 at Pg. ID 601.) In response to this claim, the Commissioner conceded that the ALJ erred by failing to consider whether Gushen suffered from a somatoform disorder. (See Report and Recommendation, ECF #25 at Pg. ID 613.) The Commissioner nonetheless argued that this Court should affirm the denial of benefits on the ground that the ALJ's error was harmless.

         On December 29, 2016, the Magistrate Judge issued a Report and Recommendation (the “R&R”) in which he recommended that the Court grant the Commissioner's motion and deny Gushen's motion. (See ECF #25.) In the R&R, the Magistrate Judge agreed with the Commissioner's harmless error argument. Specifically, the Magistrate Judge agreed with the Commissioner that when the ALJ provided a well-supported explanation for why Gushen's impairments did not satisfy Listings 12.04 and 12.06, the ALJ had effectively decided that Gushen's impairments did not satisfy Listing 12.07. (See Id. at Pg. ID 620-21.) The Magistrate Judge reasoned that because Paragraph B of Listing 12.07 was identical to Paragraph B of Listings 12.04 and 12.06, the ALJ's “Paragraph B findings regarding Listings 12.04 and 12.06 may be reasonably extrapolated to encompass what the ALJ would have concluded in analyzing the same factors under Listing 12.07.” (Id.) Thus, while the Magistrate Judge “agreed with [Gushen] that the ALJ erred by inexplicably failing to discuss Listing 12.07, ” he ultimately concurred with the Commissioner that the ALJ's error was “harmless.” (Id.)

         C

         Gushen then filed an objection to the R&R (the “Objection”). (See ECF #26.) Gushen objected solely “to the finding of the Magistrate Judge that the ALJ's failure to address Listing 12.07 was harmless error.” (Id. at Pg. ID 627.) On February 23, 2017, the Court issued an Opinion and Order (the “Remand Order”) in which it sustained the Objection, granted Gushen's motion for summary judgment, ...


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