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Gonzales v. Commissioner of Social Security

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

May 28, 2019

MICHAEL GONZALES, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ARTHUR J. TARNOW DISTRICT JUDGE

          REPORT AND RECOMMENDATION

          MONA K. MAJZOUB UNITED STATES MAGISTRATE JUDGE

         Plaintiff Michael Gonzales filed this action seeking judicial review of Defendant's decision denying his applications for Social Security benefits under 42 U.S.C. § 405(g). (Docket no. 1.) The court remanded the matter for further administrative proceedings. (Docket nos. 20, 21.) Before the court is Plaintiff's Motion for Award of Attorney Fees Pursuant to the Equal Access to Justice Act 28 U.S.C. § 2412(d). (Docket no. 23.) Defendant filed a Response to Plaintiff's Motion (docket no. 24), and Plaintiff filed a Reply to Defendant's Response (docket no. 27). The Motion has been referred to the undersigned for a hearing and determination pursuant to 28 U.S.C. § 636(b)(1)(A). (Docket no. 25.) Because this is a post-judgment matter, the undersigned may only proceed by report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). The undersigned has reviewed the pleadings, dispenses with a hearing pursuant to Eastern District of Michigan Local Rule 7.1(f)(2), and issues this Report and Recommendation.

         I. RECOMMENDATION

         For the reasons that follow, it is recommended that Plaintiff's Motion for Award of Attorney Fees Pursuant to the Equal Access to Justice Act 28 U.S.C. § 2412(d) (docket no. 23) be DENIED.

         II. REPORT

         A. Procedural History

         Plaintiff applied for a period of disability, disability insurance benefits, and supplemental security income, alleging that he had been disabled since October 20, 2013, due to disc herniation; degenerative disc disease; back spasms; weakness, numbness, and burning in his “lower half;” sciatic problems; his need to use a cane in the mornings; insomnia due to back, hip, knee, and foot pain; complete exhaustion; slight depression; and constant tripping and falling due to shuffling. (TR 20, 203-09, 218-24, 238.) The Social Security Administration initially denied Plaintiff's claims on March 3, 2014, and Plaintiff requested a de novo hearing. (TR 96-103, 110-11.) On November 23, 2015, Plaintiff appeared with a representative and testified at the hearing before Administrative Law Judge (ALJ) Virginia (Trzaskoma) Herring. (TR 35-91.) In a December 10, 2015 decision, the ALJ found that Plaintiff was not entitled to benefits because he was capable of performing a significant number of jobs in the national economy. (TR 20-30.) The Appeals Council declined to review the ALJ's decision. (TR 1-6.)

         Plaintiff filed a timely Complaint for judicial review on December 14, 2016, and the parties subsequently filed cross Motions for Summary Judgment. (Docket nos. 1, 13, 14.). On February 6, 2018, the undersigned issued a Report and Recommendation which recommended that Plaintiff's Motion for Summary Judgment be granted, Defendant's Motion for Summary Judgment be denied, and that the case be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). (Docket no. 19.) In a February 22, 2018 Order, the District Judge adopted the Report and Recommendation, granted Plaintiff's Motion, denied Defendant's Motion, and remanded this case to the Commissioner for further proceedings consistent with the Report and Recommendation; he also entered a Judgment regarding the same. (Docket nos. 20, 21.) Plaintiff now seeks $3, 565.00 in attorney's fees under the Equal Access to Justice Act (EAJA). (Docket no. 23.)

         B. Law and Analysis

         The EAJA provides that a court shall award attorney's fees and expenses to a prevailing party (other than the United States) in any civil action brought against the United States, unless the court finds that the position of the government was substantially justified or that special circumstances exist that would make an award unjust. 28 U.S.C. § 2412(d)(1)(A). The EAJA also provides that the attorney's fees awarded may not be at a rate of more than $125 per hour, unless the court determines that an increase in the cost of living, or some other special factor, justifies a higher fee. § 2412(d)(2)(A). The parties do not dispute that Plaintiff is a prevailing party under § 2412, see Shalala v. Schaefer, 509 U.S. 292, 300-01 (1993), or that there are no special circumstances that would make an award unjust. Defendant does contend, however, that EAJA fees are not appropriate because the government's position in this matter was substantially justified. (Docket no. 24.)

         The proper standard for determining whether the government's position was substantially justified is “whether the [g]overnment's position was justified, both in fact and in law, to a degree that could satisfy a reasonable person.” Jankovich v. Bowen, 868 F.2d 867, 869 (6th Cir. 1989) (citing Pierce v. Underwood, 487 U.S. 552, 565 (1988)). The government bears the burden of making such a showing. Scarborough v. Principi, 541 U.S. 401, 416 (2004). “The fact that th[e]

         court finds a decision of the Secretary not supported by substantial evidence is not equivalent to a finding that the position of the United States was not substantially justified.” Couch v. Sec'y of Health & Human Servs., 749 F.2d 359, 360 (6th Cir. 1984); see also Anderson v. Comm'r of Soc. Sec., 198 F.3d 244 (Table), 1999 WL 1045072, at *5 (6th Cir. Nov. 12, 1999) (unpublished per curium) (“[A]lthough there may be flaws in an ALJ's decision, which require a reversal of the denial of benefits and a remand for further consideration, this does not automatically mean that the Commissioner's decision to defend the ALJ's decision to deny benefits was not ‘substantially justified.'”). Likewise, “a position can be justified even though it is not correct.” Pierce, 487 U.S. at 556 n.2.

         Plaintiff asserted in his Motion for Summary Judgment that (1) the ALJ failed to properly apply the treating physician rule to the opinions of Dr. Louis Bojrab; (2) the ALJ's credibility determination was not supported by substantial evidence; and (3) the ALJ erred by assigning “little weight” to the opinion of Dr. Luke Kim. (Docket no. 13 at 12-21.) Defendant countered that (1) the ALJ properly gave little weight to Dr. Bojrab's opinions; (2) the ALJ's credibility finding was supported by substantial evidence; and (3) “[t]he ALJ reasonably ...


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