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Elms v. Commissioner of Social Security

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

April 9, 2019

CORNELL ELMS, Plaintiff
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER RE: ATTORNEY FEES [DOC. #31]

          R. STEVEN WHALEN UNITED STATES MAGISTRATE JUDGE

         Plaintiff Cornell Elms filed this action under 42 U.S.C. §405(g), challenging a final decision of Defendant Commissioner denying his application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act. On September 18, 2017, the Court entered judgment in Plaintiff's favor, remanding the case for further administrative proceedings. Before the Court is Plaintiff's motion for attorney fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A) [Doc. #31].

         I. STANDARD OF REVIEW

         The Equal Access to Justice Act (“EAJA”) is one of some 131 fee shifting statutes enacted by Congress. See Coulter v. State of Tennessee, 805 F.2d 146, 148 (6th Cir. 1986). Specifically, 28 U.S.C. § 2412(d)(1)(A) provides, in pertinent part:

“Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses...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...unless the court finds the position of the United States was substantially justified or that special circumstances make an award unjust.”

         The question of whether the position of the United States was “substantially justified” is answered with respect to not only the civil action, but to the administrative decision upon which the civil action is based:

“(D) ‘position of the United States' means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based....” 28 U.S.C. § 2412(d)(2)(D).

         III. DISCUSSION

         A. Entitlement to EAJA Fees

         In the context of a Social Security case brought under 42 U.S.C. § 405(g), a plaintiff such as Mr. Elms who wins a Sentence Four remand directing further administrative proceedings is a “prevailing party” within the meaning of the EAJA. Shalala v. Schaefer, 509 U.S. 292, 301-302 (1993). In addition, I find that the Commissioner's decision to deny benefits at the administrative level was not substantially justified. The Commissioner's argument that the basis for the remand was a mere “articulation error” is not correct. The Administrative Law Judge's erred in rejecting the opinion of Plaintiff's treating physician, Dr. Newman, and according “significant weight” to a one-time consultative source. The error was not just a matter of neglecting to articulate good reasons for that finding, but rather in substantively misstating and disregarding clinical evidence that supported Dr. Newman's opinion. The Court's Opinion read as follows:

As an initial matter, the Court notes that ALJ Dunn crafted a detailed RFC limiting Plaintiff to a significantly reduced range of sedentary work (Tr. 18-19). However, the purported reasons for rejecting Dr. Newman's finding that Plaintiff would be incapable of working more than two to four hours a day are not wholly satisfactory. First, the June, 2012 imaging studies showing a disc herniation at ¶ 5-C6 stands at odds with the ALJ's conclusion that Dr. Newman's finding of upper extremity limitations was unsupported by the diagnostic studies (Tr. 21, 254). Dr. Newman noted that evidence of the cervical disc herniation was consistent with the complaints of upper extremity weakness and severe cervical spine pain (Tr. 409).
Second, Dr. Newman's finding of significant range of motion limitations also constitutes “clinical evidence” in support of his disability opinion. “‘Objective medical evidence'” includes “‘evidence obtained from the application of medically acceptable clinical . . . diagnostic techniques . . . such as evidence of reduced joint motion . . .'” Wilson v. Astrue, 2011 WL 4434602, at *6-7 (E.D.Mich. September 23, 2011)(Ludington, J.)(citing 20 C.F.R. § 404.1529(a)). The clinical diagnoses are “‘a useful indicator . . . in making reasonable conclusions about the intensity and persistence of [the] symptoms and the effect those symptoms, such as pain, may have on [the] ability to work.'” Id. at *7. “[C]linical observations are not ‘red herrings' -they are relevant, objective medical evidence.” Id.
Third, while the ALJ accorded Dr. Newman's treating opinion limited weight in favor of the “significant” weight accorded Dr. Solomon's consultative opinion, the treating and consultative source opinions do not significantly differ. Both sources found notable range of motion limitations (Tr. 361, 363, 408-409). Despite the purportedly significant weight accorded to Dr. Solomon's opinion, the RFC contains an inexplicably “watered down” version of Dr. Solomon's findings. While Dr. Solomon found that Plaintiff “would fall” without the use of a cane, the RFC includes the need to hold an “assistive device at all times when walking, ” but that a cane was not required while standing (Tr. 18). However, Dr. Solomon's findings cannot be read to state that Plaintiff did not also require the use of a cane while standing. The need to hold a cane with one hand while working in the standing position would render Plaintiff, at least for part of the workday, unable to perform two-handed work. It is long recognized that the limitation to “one-handed” work significantly reduces the sedentary job base. SSR 96-9p, 1996 WL 374185, *7 (June 2, 1996) (“occupational base for an individual who must use such a device for balance because of significant involvement of both lower extremities ... may be significantly eroded”). Opinion [Doc. #29], Pg. ID 773-774.

         The Court concluded with a clear statement that the AJL's finding that Dr. Newman's opinion was not supported by objective clinical evidence was erroneous, not ...


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