United States District Court, S.D. Ohio, Western Division, Dayton
L. Ovington, Magistrate Judge
REPORT AND RECOMMENDATIONS 
L. Ovington United States Magistrate Judge
Court previously entered Judgment in favor of Plaintiff and
remanded this social security case to the Social Security
Administration for further proceedings. (Doc. #s 18, 19). The
case is presently before the Court on Plaintiff's Motion
For Attorney Fees Under The Equal Access to Justice Act
(EAJA), 28 U.S.C. § 2412(d) (Doc. #23), the
Commissioner's Response (Doc. #24), Plaintiff's Reply
(Doc. #25), and the record as a whole. Plaintiff seeks an
award of attorney fees under the EAJA in the total amount of
$7, 007.83. The Government opposes the proposed EAJA award on
the ground that its decision to defend Administrative Law
Judge (ALJ) Elizabeth A. Motta's non-disability decision
was reasonable and, therefore, substantially justified.
purpose of the EAJA is to remove financial obstacles to
challenging unreasonable government action. The EAJA
provision for fees specifies that ‘a court shall
award' attorney fees and other expenses to a prevailing
party, including a Social Security claimant, in civil
litigation against the United States government,
‘unless the court finds that the position of the United
States was substantially justified or that special
circumstances make an award unjust.'” Minor v.
Comm'r of Soc. Sec., 826 F.3d 878, 881 (6th Cir.
2016) (quoting, in part, 28 U.S.C. § 2412(d)(1)(A))
(other citations omitted). “The government's
position is substantially justified if it is ‘justified
in substance or in the main'-that is, justified to a
degree that could satisfy a reasonable person. Glenn v.
Comm'r of Soc. Sec., 763 F.3d 494, 498 (6th Cir.
2014) (quoting, in part, Pierce v. Underwood, 487
U.S. 552, 565 (1988); see Howard v. Barnhart, 376
F.3d 551, 554 (6th Cir. 2004).
Commissioner carries the burden to establish that her
litigation position- supporting ALJ Motta's decision-was
substantially justified. Delong v. Comm'r of Soc.
Sec., 748 F.3d 723, 725-26 (6th Cir. 2014). The
Commissioner may meet this burden by showing that her support
of ALJ Motta's decision rested on “‘a
reasonable basis in both law and fact.'”
Glenn, 763 F.3d at 498 (quoting Pierce, 487
U.S. at 565).
Commissioner asserts that the EAJA is not an automatic
fee-shifting statute and that a prevailing party is not
presumed to be entitled to an EAJA award. These assertions
are correct in the sense that a prevailing party's
success in obtaining “‘a remand alone is not a
proper basis for the allowance of fees and expenses under the
EAJA.'” Id. at 726 (6th Cir. 2014)
(brackets and citation omitted). Yet, upon deeper reflection,
the lack of either automatic fee-shifting or a presumed
entitlement to EAJA fees is minimally significant for two
reasons. First, the Commissioner carries the burden to
establish that her decision to support ALJ Motta's
non-disability determination was substantially justified.
See id. at 725-26. The absence of automatic
fee-shifting or presumed entitlement to EAJA fees does not
change or minimize her burden. Second, Magistrate Judge
Stephanie K. Bowman has cogently and convincingly concluded:
Precedent … supports the exercise of discretion in
favor of award of EAJA fees in the vast majority of social
security cases involving remands in the Sixth Circuit.
See, e.g., Turner v. Comm'r of Soc. Sec., 680
F.3d 721, 724 (6th Cir. 2012) (discussing policy reasons in
favor of the award of EAJA fees based upon remand orders
alone); see also, Glenn v. Comm'r of Soc. Sec.,
763 F.3d 494, 499 (6th Cir. 2014) (reversing denial of EAJA
fees as abuse of discretion where remand was based on
substantive rather than procedural error, including a
selective consideration of the evidence and errors that
“were plainly contrary to law.”); Bass v.
Colvin, 120 F.Supp.3d 697 (N.D. Ohio 2015)
(Commissioner's position opposing remand not
substantially justified due to error-ridden RFC
determination, notwithstanding court's rejection of some
errors); Cowart v. Comm'r of Soc. Sec., 795
F.Supp.2d 667, 670 (W.D. Mich. 2011) (rejecting argument that
based upon statement in opinion remanding that “there
is medical evidence in this record that might support a
finding of non-disability, ” because “to accept
the Commissioner's reasoning would be inconsistent with
the rule that a plaintiff who wins a Sentence Four remand is
a ‘prevailing party, ' and thus entitled to EAJA
fees, without regard to whether he or she ultimately prevails
on remand.”); Pyatt v. Comm'r of Soc.
Sec., 771 F.Supp.2d 891, 898-902 (S.D. Ohio 2011)
(finding Commissioner's defense of clear procedural
error, and alternative contention that the error was
harmless, was not substantially justified).
Stacey v. Comm'r of Soc. Sec., 2016 WL 3079130,
at *4 (S.D. Ohio 2016), Report & Recommendation adopted
by Stacey v. Comm'r of Soc. Sec., 2016 WL
3058298 (S.D. Ohio 2016) (Beckwith, D.J.).
Commissioner contends that her decision to support ALJ
Motta's decision was substantially justified because this
Court agreed with one of the Commissioner's main
arguments-namely, that substantial evidence supported the
ALJ's weighing of treating physician Dr. Shaw's
opinions. This contention lacks merit. The Commissioner's
success in convincing both the undersigned judicial officer
and District Judge Rice to accept the ALJ's assessment of
Dr. Shaw's opinion falls short of establishing
substantial justification. “Obviously, the fact that
one other court agreed or disagreed with the Government does
not establish whether its position was substantially
justified.” Pierce v. Underwood, 487 U.S. 552,
569 (1988); see Howard v. Barnhart, 376 F.3d 551,
554 (6th Cir. 2004).
Commissioner also contends that although the Court found
error in the ALJ's assessment of Plaintiff's
credibility, the presence of this single error supports the
Government's assertion of substantial justification. This
contention understates the flaws District Judge Rice
identified in the ALJ's decision. District Judge Rice
found that the ALJ did not reasonably consider
Plaintiff's daily activities. He explained:
[A]lthough ALJ Motta purported to incorporate some of
Plaintiff's subjective complaints of depression and
anxiety into Plaintiff's RFC, Doc. #6-2, PAGEID #54, she
did not adequately explain how she incorporated ...