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McPhee v. Social Security Commissioner

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

January 19, 2018

KELLY A. McPHEE, Plaintiff,


          Patricia T. Morris, United States Magistrate Judge.

         I. OPINION

         A. Introduction and Background

         Pursuant to the parties' consent under 28 U.S.C. § 636(c), E.D. Mich. LR 72.1(b)(3), before the Court lies Plaintiff Kelly A. McPhee's Motion for Fee under 28 U.S.C. § 2412, also known as the Equal Access to Justice Act (“EAJA”). (Docs. 13, 19).

         Joshua T. McFarland represents McPhee in the instant action. McPhee applied for benefits under the Disability Insurance Benefits program of Title II, 42 U.S.C. § 401 et seq., on April 18, 2011, alleging an onset date of December 17, 2010. (Tr. Tr. 115-16). She amended this date to September 15, 2008 at her hearing before Administrative Law Judge Ethel Revels. (Tr. 37-71). McPhee's application was denied at the initial level, then by the ALJ, and finally by the Appeals Council. (Tr. 1-6, 17-23, 115-23). McPhee then filed for judicial review of her claims on November 9, 2016. (Doc. 1).

         The parties filed cross motions for summary judgment. (Docs. 12, 15). On November 26, 2017, the undersigned issued an opinion and order remanding the instant matter to the Commissioner for further proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g). (Doc. 17-18). Thereafter, on December 12, 2017, McPhee filed the instant Motion for EAJA Fee. (Doc. 19). The Commissioner filed a response on December 18, 2017, (Doc. 23). McPhee's Motion is therefore ready for determination.

         B. Analysis

         Attorneys in Social Security benefits cases may collect fees through two statutes: the EAJA, and 42 U.S.C. § 406. Fees collected under the EAJA are paid by the Commissioner out of its own coffers, whereas fees collected under § 406 are paid out of the claimant's past due benefits. See Scappino v. Comm'r of Soc. Sec. Admin., No. 1:12-CV-02694, 2015 WL 7756155, at *3 (N.D. Ohio Dec. 1, 2015). Fees may be collected under the EAJA only where the Commissioner's position was not “substantially justified, ” and thus operates to “discourage the government from taking unjustified positions.” Jones v. Schweiker, 565 F.Supp. 52, 55 (W.D. Mich. 1983).

         1. Standard for Obtaining EAJA Fees

         Where a court renders a judgment favorable to a Social Security claimant who was represented by counsel, the court may allocate to that counsel a “reasonable” fee for such representation. 28 U.S.C. § 2412(b). An application for attorney's fees under the EAJA, including an itemized justification for the amount requested, must be filed within thirty days of final judgment in the action. 28 U.S.C. § 2412(d)(1)(B). In addition, the claimant must be an eligible party, i.e. one “whose net worth did not exceed $2, 000, 000 at the time the civil action was filed.” 28 U.S.C. § 2412(d)(2)(B).

         Three additional conditions must be met in order to recover attorney's fees under the EAJA: (1) the claimant must be a prevailing party; (2) the government's position must be without substantial justification; and (3) there must be no special circumstances which would warrant a denial of fees. See Ratliff v. Commissioner of Soc. Sec., 465 F. App'x 459, 460 (6th Cir. 2012); Marshall v. Commissioner, 444 F.3d 837, 840 (6th Cir. 2006).

         2. EAJA Fees Are Justified

         At the outset, I note that McPhee obtained a Sentence Four remand, making her a prevailing party in this matter, see Turner v. Comm'r of Soc. Sec., 680 F.3d 721, 723 (6th Cir. 2012); (Docs. 17-18), and her Motion properly contains an itemized list of the amount expended, (Doc. 19, Exs. 1-2). The Commissioner does not dispute (thereby conceding) that McPhee's net worth does not exceed two-million dollars, and does not contend that any “special circumstances” warrant denying fees in this case. (Doc. 23). McPhee thus satisfies all of the prerequisite criteria for obtaining EAJA fees. Commissioner limits its challenge to arguing its position in this matter-i.e., that remand was not required-was substantially justified. The allegation that the Commissioner's position was substantially justified “imposes no proof burden on the fee applicant, but is simply an allegation or pleading requirement.” Scarborough v. Principi, 541 U.S. 401, 414-15 (2004). That allegation “functions to shift the burden to the Government to prove that its position in the underlying litigation ‘was substantially justified.'” Id.

         The Commissioner's “position” includes both its underlying action and its litigation position. 28 U.S.C. §§ 2412(d)(1)(A), (d)(2)(D); see also Noble v. Barnhart, 230 F. App'x 517, 519 (6th Cir. 2007); Delta Eng'g v. United States, 41 F.3d 259, 261 (6th Cir. 1994). In Pierce v. Underwood, the Supreme Court characterized the descriptor “substantially justified” as fitting for a government “position” if “there is a ‘genuine dispute[]' . . . or ‘if reasonable people could differ as to [the appropriateness of the contested action[.]'” 487 U.S. 552, 565 (1988) (internal citations omitted). “To be ‘substantially justified' means, of course, more than merely undeserving of sanctions for frivolousness; that is assuredly not the standard for Government litigation of which a reasonable person would approve.” Id. Such language implies the inverse as well-a position need not sink to the depths of the nearly-sanctionable in order to lack substantial justification. Under these standards, the failure of the Commissioner to prevail in warding off remand does not in and of itself constitute a lack of substantial justification for its position. Accord, e.g., Glenn v. Comm'r of Soc. Sec., 763 F.3d 494, 498 (6th Cir. 2014) (“[T]he remand standard is not the equivalent of a finding that the government's position was not substantially justified.” (citing Couch v. Sec'y of Health & Human Servs., 749 F.2d 359, 360 (6th Cir. 1984))). Nor does ...

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