United States District Court, E.D. Michigan, Southern Division
Rose E. Cantu, Plaintiff,
Commissioner of Social Security, Defendant.
R. Grand, Mag. Judge.
OPINION AND ORDER GRANTING PLAINTIFF'S PETITION
FOR ATTORNEY FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT
E. Levy, United States District Judge.
Rose E. Cantu filed this action against the Commissioner of
Social Security challenging the Commissioner's denial of
her application for Supplemental Security Income. (Dkt. 1.)
On December 28, 2018, the Court received Magistrate Judge
David R. Grand's Report and Recommendation recommending
that Cantu's motion for summary judgment be granted in
part to the extent it sought remand and denied in part to the
sought it seeks an award of benefits. (Dkt. 27.) The Court
agreed and adopted the Report and Recommendation in whole
without objection from the parties, remanding the case for
further administrative proceedings. (Dkt. 29.) Before the
Court is Cantu's motion for attorney fees under the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. §
2412. (Dkt. 30) and Cantu's supplemental brief as to the
timeliness of her petition. (Dkt. 32.) Cantu requests $6,
282.57 for less than thirty hours of attorney and less than
eight hours of paralegal time. (Dkt. 30 at 8.)
claimant to receive attorney fees under EAJA: “(1) she
must be a prevailing party; (2) the Government's opposing
position must have been without substantial justification;
and (3) there must be no special circumstances that warrant
denial of fees.” Riddle v. Comm'r of Soc.
Sec., No. 17-10905, 2019 U.S. Dist. LEXIS 33408, slip
op. at *2 (E.D. Mich. Mar. 2, 2019) (citing Willis v.
Sullivan, 931 F.2d 390, 401 (6th Cir. 1991));
Ratliff v. Comm'r of Soc. Sec., 465 Fed.Appx.
459, 460 (6th Cir. 2012). The application must also be filed
within thirty days of a court's final judgment. See
Townsend v. Soc. Sec. Admin., 486 F.3d 127, 129-30 (6th
Cir. 2007) (citing Comm'r, INS v. Jean, 496 U.S.
154, 158 (1990)). Only reasonable attorney fees will be
permitted. Glass v. Sec'y of Health &
Human Servs., 822 F.2d 19, 21 (6th Cir. 1987). Cantu
meets each of the three conditions, and she requests
reasonable attorney fees.
because the Court remanded for further agency action pursuant
to sentence four of § 405(g), she is a prevailing party.
Shalala v. Schaefer, 509 U.S. 292, 301-02 (1993).
the government's position, which includes “the
action . . . by the agency upon which the civil action is
based, ” § 2414(d)(2)(D), was without substantial
justification. “[T]he relevant inquiry concerning the
government's position was whether it was reasonable for
the Commissioner to defend the ALJ's decision to deny
benefits.” Ratliff, 465 Fed.Appx. at 460. A
position is substantially justified if it is justified
“to a degree that could satisfy a reasonable
person” because it had a “reasonable basis in
both law and fact.” Pierce v. Underwood, 487
U.S. 552, 553 (1988). The burden to show that the
government's position was substantially justified rests
with the government. Delong v. Comm'r of Soc. Sec.
Admin., 748 F.3d 723, 725-26 (6th Cir. 2014) (citing
Scarborough v. Principi, 541 U.S. 401, 414-15
(2004)). The government did not respond to Cantu's
application for fees, and it has not met its burden.
Jeter v. Comm'r of Soc. Sec., No. 1:18-cv-465,
2019 U.S. Dist. LEXIS 36755, slip op. at *3 (W.D. Mich. Feb.
5, 2019) (summarily finding the second factor was met where
the government did not respond to the application for fees)
(citing Scarborough, 541 U.S. at 414); see,
e.g., Dufresne v. Colvin, No. 5:12-cv-49, 2014
U.S. Dist. LEXIS 62191, at *5 (N.D.N.Y. May 6, 20140
(“[A]s the instant motion is unopposed by Defendant,
lack of substantial justification is therefore
‘impliedly admitted.'” (quoting
Livingston v. Sec'y of Health & Human
Servs., No. CIV-87-622E, 1989 U.S. Dist. LEXIS 19249, at
*1 (W.D.N.Y. Oct. 13, 1989))).
the government had responded to Cantu's motion, it could
not have shown that its position was substantially justified.
The ALJ's decision lacked legal and factual support where
the ALJ generally discounted the examining physician's
opinion, but gave great weight to other conclusions from the
same physician. The Magistrate Judge's Report and
Recommendation perfectly captures this strange result,
the ALJ concluded, in relevant part, that Cantu retains the
mental RFC to understand, carry out, and remember simple
instructions and make simple work-related decisions;
frequently interact with supervisors, coworkers, and the
public; and occasionally deal with changes in a routine work
setting; but would be off-task 10% of the workday. (Tr. 25).
In her motion for summary judgment, Cantu argues that the
ALJ's mental RFC finding is not supported by substantial
evidence. (Doc. #21 at 16-20). For the reasons set forth
below, the Court agrees.
The record contains no treating physician opinion as to
Cantu's mental limitations. However, on August 26, 2015,
Cantu underwent a consultative psychological examination with
Donovan Royal, Psy.D., L.P. (Tr. 305-08). At that time, Cantu
denied receiving outpatient mental health treatment,
indicating that her primary care physician was prescribing
Klonopin for her anxiety and depression. (Tr. 305). She
reported living with her boyfriend and their two children,
but indicated “she does not have any friends that she
socializes with” because “she is fearful and does
not like to leave her home.” (Tr. 306). On mental
status examination, she was oriented to person and place but
was unable to denote time. (Tr. 307). She could repeat four
digits forward and two backward and could recall two of three
objects after three minutes, but she named World War I, World
War II, 9/11, and the Vietnam War as current events.
(Id.). She was able to perform some (but not all)
simple calculations by using her fingers, but declined to
even attempt serial 3s or serial 7s. (Id.). Dr.
Royal diagnosed Cantu with adjustment disorder with mixed
anxiety and depressed mood. In his Medical Source Statement,
Dr. Royal opined as follows:
[Cantu] indicated she feels “frightened and
overwhelmed.” She does not like to drive or be around
people and prefers to stay within her residence. Her ego
strength appears to be poor. Her cognitive skills were
characterized by being oriented to place and person.
Short-term memory and computational skills were also poorly
exhibited. Her reasoning was concrete. Her feelings of
persecution of being talked about and that someone is after
her seems to cause her anxiety. These personality traits
would suggest that she would have a difficult time attending
or completing work efficiently. Based on the claimant's
presentation during today's Mental Status Evaluation, as
well as, a lack of psychotherapeutic treatment beyond
medication, it would suggest the prognosis for improved
psychological and adaptive functioning to be limited.
The ALJ considered Dr. Royal's opinion, giving it
“partial weight overall.” (Tr. 29). Specifically,
the ALJ stated: “In terms of Dr. Royal's opinion
that [Cantu] would have difficulty attending and completing
work efficiently, his opinion is given great weight because
it is supported by the record.” (Id.).
However, the ALJ gave “little weight” to Dr.
Royal's conclusion that Cantu has a “limited
prognosis for improved functioning” because (1) it was
inconsistent with the observation that she did not present
for mental health treatment; (2) Cantu exhibited
“normal memory” and “was able to perform
simple calculations”; (3) Cantu did not treat with a
mental health provider; and (4) “her treating clinician
noted normal mental status in multiple examinations[.]”
(Id.). Additionally, the ALJ discounted this aspect
of Dr. Royal's opinion because it was inconsistent with
Cantu's “self-reported activity level.”
To begin with, the ALJ was required to evaluate every medical
opinion of record - including that of Dr. Royal, the
consultative examiner - and, to the extent he rejected any of
them, set forth a valid basis for doing so. See 20 C.F.R.
§ 416.927(c). . . . Regardless, however, “the
ALJ's decision still must say enough to allow the
appellate court to trace the path of his reasoning.”
Stacey v. Comm'r of Soc. Sec., 451 Fed.Appx.
517, 519 (6th Cir. 2011) (internal quotation marks omitted).
See also Soc. Sec. Rul. 06-03p, 2006 WL 2329939, at *6 (Aug.
9, 2006) (ALJ required to explain weight given to
non-treating source opinion and “otherwise ensure that
the discussion of the evidence in the determination or
decision allows a claimant or subsequent reviewer to follow
[his] reasoning ….”). As described more
fully below, the Court simply cannot grasp the ALJ's
reasoning for discounting Dr. Royal's opinion because the
reasons he articulated for doing so simply do not find
support in the record
First, it is not clear how the ALJ's decision to give
“great weight” to Dr. Royal's opinion that
Cantu “would have a difficult time attending or
completing work efficiently” squares with his
conclusion that she has the RFC to perform a reduced range of
simple, light work on a full-time basis. Indeed, these two
findings seem incongruous. The Commissioner argues that
because Dr. Royal's statement about Cantu's
difficulty attending or completing tasks was “not
quantified, ” it “fell to the ALJ to translate it
into concrete functional terms” and that the ALJ's
“10% off-task allowance reasonably reflects Dr.
Royal's vague opinion ….” (Doc. #22 at 18,
19). The problem, however, is that the ALJ has provided no
guidance whatsoever as to how he arrived at the 10% off task
allowance, or in what way he believes that restriction to be
consistent with Dr. Royal's findings and opinions. A gap
in logic of this nature simply cannot be overlooked. See
Rapp v. ...