United States District Court, N.D. Ohio, Eastern Division
AMIE M. McCOY, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM OPINION AND ORDER
Kathleen B. Burke United States Magistrate Judge.
Amie M. McCoy (“McCoy” or
“Plaintiff”) filed this action for judicial
review of the Commissioner's final decision denying her
applications for social security disability benefits. Doc. 1.
On November 4, 2016, the Court reversed and remanded the
decision of the Commissioner for further proceedings
consistent with the Court's Memorandum Opinion &
Order of the same date. Doc. 22. On February 2, 2017,
Plaintiff filed an Application for Attorney Fees Pursuant to
the Equal Access to Justice Act (“EAJA”), seeking
$7, 268.66 in attorney fees and expenses. Doc. 24. The
Commissioner has opposed Plaintiff's Application for EAJA
fees, arguing that the government's position was
“substantially justified” and that Plaintiff is
therefore not entitled to an award of EAJA fees. Doc. 26. The
Commissioner also argues that Plaintiff's requested fee
is not reasonable. Doc. 26.
following reasons, the Court DENIES Plaintiff's
Application for Attorney Fees Under the Equal Access to
Justice Act (EAJA) (Doc. 24).
EAJA provides, in relevant part:
Except as otherwise specifically provided by statute, a court
shall award to a prevailing party other than the United
States fees and other expenses . . . incurred by that party
in any civil action (other than cases sounding in tort),
including proceedings for judicial review of agency action,
brought by or against the United States in any court having
jurisdiction of that action, unless the court finds that the
position of the United States was substantially justified or
that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A).
the EAJA provides for payment of fees and expenses to the
prevailing party in an action against the United States
unless the position of the United States was substantially
justified or special circumstances make an award unjust. 28
U.S.C. § 2412(d)(1)(A); Howard v. Barnhart, 376
F.3d 551, 553 (6th Cir. 2004) (discussing 28 U.S.C. §
Commissioner does not contest that Plaintiff was the
prevailing party. See Shalala v. Schaefer, 509 U.S.
292, 300-302, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993) (party
obtaining a sentence-four judgment reversing a denial of
benefits has prevailing party status under the EAJA). In
addition, the Commissioner does not argue that there are any
special circumstances that warrant the denial of attorney
fees. The issues in dispute are whether the
Commissioner's position was substantially justified and
whether the fees requested by Plaintiff are reasonable.
the EAJA, “a position is substantially justified when
it has a ‘reasonable basis both in law and
fact.'” Howard, 376 F.3d at 554 (quoting
Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct.
2541, 101 L.Ed.2d 490 (1988)); see also DeLong v.
Comm'r of Soc. Sec. Adm., 748 F.3d 723, 726 (6th
Cir. 2014). While the burden of establishing substantial
justification is on the Commissioner, there is no presumption
that the Commissioner's position was not substantially
justified simply because it lost the case. Scarborough v.
Principi, 541 U.S. 401, 414-415, 124 S.Ct. 1856, 158
L.Ed.2d 674 (2004). Thus, the fact that the
“Commissioner's position was unsupported by
substantial evidence does not foreclose the possibility that
the position was substantially justified.”
Howard, 376 F.3d at 554; see also DeLong,
748 F.3d at 726 (“[R]emand alone is not a proper basis
for the allowance of fees and expenses under the
EAJA.”) (quoting Couch v. Sec. of Health &
Human Servs., 749 F.2d 359, 360 (6th Cir. 1984)(per
Commissioner argues that “the government's position
in this case had a reasonable basis in law and fact despite
the articulation errors in the ALJ's decision.”
Doc. 26, p. 5. The Commissioner also points out that,
although the Court remanded the case for an articulation
error at Step Five, the Court also rejected McCoy's two
alternate grounds for remand, i.e., evaluation of state
agency physicians' opinions and assessment of GAF scores.
Doc. 26, pp. 5-6. Based on the foregoing, the Commissioner
asserts that the government's position was substantially
justified and an award of EAJA fees is not warranted. Doc.
26, p. 6.
counters that the ALJ's error in this case was more than
a mere articulation error and the Commissioner's position
that EAJA fees are not warranted because the Court found in
the Commissioner's favor on two other issues is not
compelling and disfavored by case law. Doc. 28, pp. 1-2.
Accordingly, McCoy asserts that the Court should find that
the Commissioner's position was not substantially
question whether the Commissioner was substantially justified
is more appropriately focused on the specific error leading
to the remand, not on McCoy's alternative arguments that
the Court concluded were not a basis for reversal or remand.
See Glenn v. Comm'r of Soc. Sec., 763 F.3d 494,
498 (6th Cir. 2014) (finding error where the district court
did not determine whether the government's position was
substantially justified but instead concluded that the
government's position was substantially justified because
the claimant raised other errors that the court rejected);
see also Harris v. Comm'r of Soc. Sec., 2010 WL
3075486, at *2 (N.D. Ohio Aug. 5, 2010) ([A]gree[ing] with
Plaintiff that the inquiry should be focused on the specific
error necessitating the remand, not on Plaintiff's
alternative arguments . . . that [the] Court
considering whether the ALJ's decision was
“substantially justified” for EAJA purposes,
courts have distinguished between remands involving
“mere articulation errors” and remands where the
district court determines that the evidence does not support
the ALJ's decision even when properly considered. See
e.g., Olive v. Comm'r of Soc. Sec., 534 F.Supp.2d
756, 759-761 (N.D. Ohio 2008) (citing Anderson v.
Comm'r of Soc. Sec.,198 F.3d 244, 1999 WL 1045072
(6th Cir. 1999) (unpublished table decision)); see also
Harris v. Comm'r of Soc. Sec., 2010 WL 3075486, at
*2 (N.D. Ohio Aug. 5, 2010) (no attorney fees where
articulation error was surrounded by an otherwise
“thorough and record-based analysis”) compare
with Winning v. Comm'r of Soc. Sec., 2010 WL
3222031, at *4 (N.D. Ohio Aug. 13, 2010) (awarding fees where
“the ALJ failed to provide substantive reasons for her
decision to ignore the treating psychologist's opinion
and because the record [did] not support the ALJ's
credibility determination.”). While distinctions have
been drawn between remands for “mere articulation
errors” and ...