DAVINA L. SMITH, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
MAGISTRATE'S REPORT AND RECOMMENDATION
VERNELIS K. ARMSTRONG, Magistrate Judge.
This matter was referred to the undersigned Magistrate, pursuant to 28 U.S.C. § 636 and UNITED STATES DISTRICT COURT LOCAL RULE 72.2, to file a Report and Recommendation for disposition of the application for payment of attorney fees (Docket No. 23). Pending is Plaintiff's Motion for Attorney Fees filed pursuant to the EQUAL ACCESS TO JUSTICE ACT (EAJA), Defendant's Response, Plaintiff's Reply to Defendant's Response and Plaintiff's Supplement to the Motion (Docket Nos. 22, 25, 27 & 28). For the reasons set forth below, the Magistrate amends the report and recommendation to address the Supplement to Plaintiff's Application as well as the award of attorney fees requested by Paulette F. Balin.
I. PROCEDURAL BACKGROUND
On August 29, 2008, Plaintiff protectively filed concurrent applications for a period of DIB and SSI, under Title II of the Social Security Act (Act) and Title XVI of the Act, respectively. In both applications, Plaintiff alleged a period of disability beginning July 11, 2008. These claims were denied initially and upon reconsideration.
Plaintiff filed a timely written request for a hearing and on September 15, 2010, Plaintiff, represented by counsel, and a Vocational Expert (VE) appeared before Administrative Law Judge Irving A. Pianin. ALJ Pianin found that Plaintiff had a severe combination of lupus, a back disorder, peripheral neuropathy, chronic obstructive pulmonary disease (COPD), obesity, depression and anxiety; nevertheless, ALJ Pianin determined that based on all the evidence presented, Plaintiff had not been disabled within the meaning of the Act at any time from the alleged onset date through September 17, 2010.
On April 6, 2012, the Appeals Council denied Plaintiff's request for review, thereby rendering the ALJ's decision the final decision of the Commissioner.
On June 11, 2012, Plaintiff filed a Complaint in the Northern District of Ohio, Eastern Division, seeking judicial review of the Commissioner's denial of an award of benefits. United States District Court Judge Patricia A. Gaughan accepted the Magistrate Judge's Report and Recommendation and ordered that the case be reversed and remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) to:
1. comprehensively set forth the reasons for the weight assigned to the opinions of Dr. Mikhail, a treating source, and
2. determine if based on that reassessment, Plaintiff was eligible for an award of benefits.
Plaintiff filed a Motion for Attorney Fees under EAJA requesting an order authorizing payment of attorney fees totaling $4, 330.12 to be paid by the Defendant. Defendant seeks an order denying Plaintiff's request for fees and costs.
The Magistrate filed a Report and Recommendation recommending that the Court grant the Motion for Attorney Fees. The Supplement to Plaintiff's Application for Payment of Attorney Fees and Paulette F. Balin's request for attorney fees were inadvertently omitted from consideration; therefore, this Amended Report and Recommendation also includes a recommendation as to the request for attorney fees by Matthew J. Shupe and Paulette Balin (Docket Nos. 22-10 & 22-11 and 28).
II. EAJA STANDARD FOR AWARDING FEES
A court may award reasonable fees and expenses of attorneys, in addition to the costs which may be awarded pursuant to subsection (a), to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. 28 U.S.C. § 2412(b) (Thomson Reuters 2013). The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award. 28 U.S.C.A. § 2412(b) (Thomson Reuters 2013). A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that: (1) the party is a prevailing party, (2) the party is eligible to receive an award under this subsection, (3) the position of the United States was not substantially justified and (4) the itemized statement from any attorney or expert witness representing or appearing in behalf of the party states the actual time expended and the rate at which fees and other expenses were computed. 28 U.S.C. § 2412(d)(1)(B) (Thomson Reuters 2013).
III. IS PLAINTIFF ENTITLED TO AN AWARD OF FEES?
Plaintiff contends that (1) she is a prevailing party; (2) that she is eligible for the award of fees; (3) that the government's position was not substantially justified; and (4) the record has been supplemented with itemized statements.
Defendant does not challenge whether Plaintiff is a prevailing party or whether she is eligible for the award of fees as defined in the Act. Defendant claims that the government met the burden of proving that its position was substantially justified so as to preclude an award of attorney fees.
1. PREVAILING PARTY STATUS.
A sentence-four remand makes the plaintiff a "prevailing party" under the EAJA, Turner v. Commissioner of Social Security, 680 F.3d 721, 723 (6th Cir.2012) ( see Shalala v. Schaefer, 113 S.Ct. 2625, 2630-2631 (1993); entitling the plaintiff to "fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party..." Id. ( citing 28 U.S.C. § 2412(d)(1)(A)). Because the "EAJA renders the United States liable for attorney's fees for which it would otherwise not be liable, " it "amounts to a partial waiver of sovereign immunity." Id. ( citing Scarborough v. Principi, 124 S.Ct. 1856, 1868-1869 (2004) ( quoting Ardestani v. I.N.S., 112 S.Ct. 515, 520 (1991)). Fees are paid directly to the claimant, Id. ( citing Bryant v. Commissioner of Social Security, 578 F.3d 443, 449 (6th Cir.2009), unless the claimant preemptively assigns the fee award to counsel. Id.
Plaintiff contends that she meets the first prong of the four-part test. She has prevailed in some aspect of her claim, namely, she succeeded in getting a sentence four remand. Having been awarded a remand order pursuant to sentence four of 42 U.S.C. § 405(g), Plaintiff is unequivocally a prevailing party for purposes of the EAJA.
2. ELIGIBILITY FOR AN AWARD.
The second element requires that the party be eligible to receive the award. 28 U.S.C. § 2412(d)(1)(B) (Thomson Reuters 2013). The statute qualifies the meaning of eligible party to mean "an individual whose net worth did not exceed $2, 000, 000 at the time of the civil action was filed." 28 U.S.C. § 2412(d)(2)(B) (Thomson Reuters 2013).
Plaintiff alleges, simply, that she is eligible to receive EAJA fees because she has a net worth that is far less than two million-dollars (Docket No. 22, ¶ 2). Defendant neither challenges this assertion nor provided other evidence which warrants that would discount the truth of the matter asserted.
3. WAS THE GOVERNMENT'S POSITION SUBSTANTIALLY JUSTIFIED?
Defendant's argument as to why the government's position is substantially justified is twofold. First, Plaintiff's argument that the government's position was not substantially justified is perfunctory, wholly unsupported and totally undeveloped and as such, should be waived. Second, although the ALJ failed to articulate why he discounted Dr. Mikhail's assessments, the Magistrate Judge's Report and Recommendation is replete with probable reasons to discount Dr. Mikhail's opinions.
Whether the position of the United States was substantially justified, shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought. 28 U.S.C. § 2412(d)(1)(B) (Thomson Reuters 2013). The determination of what constitutes "substantial justification" is based on a wide variety of factual contexts and legal issues. Scarborough, supra, 124 S.Ct. at 1865-1866. The "substantial justification standard" is essentially one of reasonableness. Id. The pertinent inquiry is whether the United States's position had a reasonable basis in law and fact. Id.
The government bears the burden of establishing that the position of the United States is substantially justified. Id. To satisfy its burden, the United States must show that its position was "justified to a degree that could satisfy a reasonable person, " not merely that the government was "undeserving of sanctions for frivolousness." Pierce v. Underwood, 108 S.Ct. 2541, 2550 (1988). The fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. Hensley v. Eckerhart, 103 S.Ct. 1933, 1941 (1983).
The regulations are well established that the ALJ must give deference to some basic considerations in assessing the treating physician's opinions. The treating physician analysis is a key element that is critical when assessing eligibility for disability or determining non-disability. There is little substance, if any, that the Magistrate can find in the government's refusal to follow analyze the treating physician. Neither has Defendant presented arguable defensible reasons for ALJ's failure to explicitly comply with the regulations. Defendant's decision to defend the ALJ's failure to develop the treating physician analysis as required by law and the regulations as a position of the United States is not substantially justified. That is to say that Plaintiff's failure to articulate why the government was not substantially justified neither waived the argument nor rescued the government from a substantially unjustified position on the law.
4. HAS THE RECORD BEEN SUPPLEMENTED WITH ITEMIZED STATEMENTS?
Pursuant to 28 U.S.C. § 2412(d)(1)(b), any fee application must be filed within 30 days of the final judgment in the action and it must be supported by an itemized statement. Plaintiff has provided an itemized statement which clearly delineates the actual time expended on the case, by whom, their usual billing rates and the ...