United States District Court, E.D. Michigan, Southern Division
Honorable Paul D. Borman Judge
REPORT AND RECOMMENDATION TO GRANT PLAINTIFF'S
PETITION FOR ATTORNEY FEES [ECF. NO. 28]
ELIZABETH A. STAFFORD UNITED STATES MAGISTRATE JUDGE
Royal, counsel for Plaintiff Stephanie Ann Falkenhagen, seeks
an award of $4, 709.25 for attorney's fees under the
Equal Access to Justice Act (EAJA), 28 U.S.C. §
2412(d)(1)(A). [ECF No. 28]. The Commissioner objects to
Royal's request for fees under the EAJA, reasoning that
its position in the underlying matter was substantially
justified. The Honorable Paul D. Borman referred this matter
to this Court for a report and recommendation under 28 U.S.C.
§ 636(b)(1)(B). After reviewing the petition and
objections, the Court RECOMMENDS that
Royal's motion be GRANTED.
Court recommended granting Falkenhagen's motion for
summary judgment and remanding the underlying matter for
further proceedings based on the ALJ's failure to
properly apply the treating physician rule to the opinion of
Karim Fram, M.D. [ECF No. 24, Page.ID1453-57]. No. objections
were filed, and the district court adopted the report and
recommendation, and remanded the matter for further
consideration. [ECF No. 26].
the EAJA, the prevailing party in an action seeking judicial
review of a decision of the Commissioner of Social Security
may apply for an award of fees and costs incurred in bringing
the action. 28 U.S.C. § 2412(d) (1)(A). Prevailing
parties may be awarded fees and costs unless the Court finds
that the Commissioner's position was “substantially
justified” or that “special circumstances make an
award unjust.” 28 U.S.C. § 2412(d)(1)(A);
Vitale v. Comm'r. of Soc. Sec., 16-12654, 2019
WL 3943862, at *2 (E.D. Mich. Mar. 26, 2019),
adopted, 2019 WL 3936554 (E.D. Mich. Aug. 20, 2019).
The Commissioner does not dispute that Falkenhagen is a
prevailing party or identify any special circumstances
precluding an award of fees. The only issue is whether the
Commissioner's position was substantially justified.
Commissioner has the burden of showing that her position was
substantially justified, which is defined as
“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). “[A]n
ALJ's failure to provide an adequate explanation for his
findings does not establish that a denial of benefits lacked
substantial justification.” DeLong v. Comm'r of
Soc.Sec., 748 F.3d 723, 727 (6th Cir. 2014). If a court
finds that the ALJ “simply needed to be more explicit
in regard to why the decision was made, ” and thus
remands for further development the record or better
articulation of the decision, the Commissioner may not have
been wrong on the merits of the case. McKeel v.
Comm'r of Soc.Sec., 14-12815, 2015 WL 5619848, at *4
(E.D. Mich. Sept. 24, 2015). A remand based on that kind of
procedural error does not support a finding that the
government's position was not substantially justified.
Id.; DeLong, 748 F.3d at 727.
Commissioner argues that the remand issued here, like those
in DeLong and McKeel, was based on a
failure to articulate good reason for denying the treating
physician's opinion controlling weight. [ECF No. 31]. It
thus maintains that the Commissioner's defense of the
merits of the ALJ's decision was substantially justified.
[Id., Page.ID1497]. The Court disagrees, finding the
recent Vitale case instructive. 2019 WL 3943862, at
Vitale, the Commissioner characterized the ALJ's
error as the lack of articulated good reason for dismissing
the treating physician's opinion. Id. But the
court called this an oversimplification. Id. The
court had “called for more than a better explanation of
good reasons”; it had remanded for “further
evaluation” of the treater's opinions. Id.
Here too, the Commissioner is inaccurate when alleging that
the Court's remand was based solely on the ALJ's lack
of articulated good reasons for denying controlling weight to
Dr. Fram's opinion.
adopted report and recommendation does refer to the ALJ's
insufficient articulation. “This conclusion does not
analyze Dr. Fram's opinion under the two-prong
controlling weight test,  and thus does not articulate the good
reasons necessary to withhold controlling weight for that
opinion.” [ECF No. 24, Page.ID1456 (footnote added)].
If the Court's analysis ended there, the
Commissioner's argument that remand was due only to a
procedural error would have merit. See McKeel, 2015
WL 5619848, at *4.
Court also found substantive fault with the ALJ's
analysis of Dr. Fram's opinion. [ECF No. 24,
Page.ID1455-1456]. The ALJ did not give Dr. Fram's
reaching restriction controlling weight, reasoning that the
restriction was inconsistent with Falkenhagen's
testimony. The Court found that reasoning baseless.
[Id.]. Falkenhagen's testimony that she could
reach overhead, but experienced pain when she did so, did not
contradict Dr. Fram's opinion that she should avoid
overhead reaching. [Id.]. Nor did her testimony
“support the ALJ's determination that she is
capable of overhead reaching between 1/3 and 2/3 of an
eight-hour working day, the regulatory definition of
frequently.” [Id.]. The Court thus recommended
remand for “reconsideration of the weight given to Dr.
Fram's opinion regarding the severity of restrictions
Falkenhagen required.” [Id.]. In other words,
the ALJ's reasoning was flawed, and not just
insufficiently articulated. It thus follows that the
Commissioner's decision to defend the ALJ's decision
did not have a reasonable basis in law and fact, and was not
Court is not persuaded by the Commissioners “attempts
to carry [its] burden of showing that the government's
position was substantially justified by characterizing the
ALJ's error as a mere ‘articulation
error.'” Cunic-Goodman v. Comm'r of Soc.
Sec., No. 1:17-CV-382, 2019 WL 935209, at *3 (W.D. Mich.
Feb. 26, 2019). Royal's motion for EAJA fees should be