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Tracey s v. Social Security Administration Commissioner

United States District Court, D. Maine

September 12, 2018

TRACEY S., Plaintiff



         Plaintiff Tracey S. seeks to recover attorney fees and expenses pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, following a partially successful appeal from the denial of her application for benefits under the Social Security Act. Plaintiff requests an award of $ 7, 461.53. (Application, ECF Nos. 26; Application Ex. A, 26-1.)

         Defendant contends an award is not warranted because Defendant's position in opposition to Plaintiff's complaint was substantially justified. In the alternative, Defendant proposes a reduced award. (Opposition, ECF No. 27.)

         I recommend that the Court grant in part the application and order the parties to file additional submissions on the issue.


         On August 24, 2015, Plaintiff obtained a substantially favorable decision on his claim for supplemental security income (SSI) under Title XVI of the Social Security Act. Defendant, however, citing the doctrine of res judicata, dismissed Plaintiff's claim for disability insurance benefits (DIB) under Title II. (ALJ Decision, R. 18, ECF No. 9-2.)

         In his decision, the ALJ concluded, based on the hearing testimony of Dr. Steven Kaplan, that Plaintiff's degree of impairment satisfied a listing as of November 15, 2012. The ALJ also noted that the same medical expert opined that Plaintiff was limited to sedentary capacity as of September 28, 2010. (R. 22 - 23.) The ALJ wrote: “The treatment records support Dr. Kaplan's opinions, ” and the ALJ gave “greatest weight to Dr. Kaplan's opinions and testimony, ” because the opinions were “consistent with the overall evidence of record.” (R. 23.) The ALJ awarded Plaintiff SSI benefits on Plaintiff's then pending SSI application, dated April 22, 2013. (R. 24.)

         Plaintiff appealed from the ALJ's decision. In an initial brief to the Appeals Council, counsel noted the medical expert's opinion that Plaintiff was limited to sedentary work as of September 28, 2010, and requested that the Appeals Council remand the case for further proceedings on prior DIB and SSI applications, for the period from September 28, 2010, through November 15, 2012. (Ex. 18F, R. 349, ECF No. 9-6.)

         Following its initial review, the Appeals Council notified Plaintiff that it would sustain the ALJ's dismissal of the DIB claim, and would not reopen the DIB claim based on the doctrine of res judicata. The Appeals Council, however, also informed Plaintiff that it would reopen the prior SSI claim to award benefits back to November 15, 2012 (the date on which Plaintiff's impairments met or equaled the listing). (R. 5.) In response to the notice, Plaintiff's counsel stated, “I have no objection to the change in the SSI claim that will find that disability existed since November 15, 2012, as opposed to [the] April 22, 2013, date as given in the [ALJ's] decision.” (Representative Brief, Ex. 17E, R. 347, ECF No. 9-6.) Counsel objected to the decision that Plaintiff's current and prior DIB claims were precluded based on res judicata. (R. 347 - 48.)

         The Appeals Council did not accept Plaintiff's argument in opposition to the res judicata determination. Based on the testifying medical expert's opinion concerning the listing, which evidence was determinative of disability, [1] the Appeals Council reopened Plaintiff's prior SSI claim pursuant to 20 C.F.R. §§ 416.1488(b), 416.1489, and found Plaintiff disabled as of November 15, 2012. (R. 6.)

         Plaintiff filed a complaint seeking judicial review. Plaintiff primarily argued that because Defendant reopened the prior SSI claim, Defendant was required to reopen the prior DIB claim as well.[2] The DIB challenge involved a number of different arguments, including some jurisdictional arguments. Plaintiff did not prevail on her DIB-related arguments.

         In her Statement of Errors, Plaintiff also asserted that because the Appeals Council decided to reopen the 2011 SSI application, “the Council was obligated to require a full five step evaluation for so much of the period as was not resolved by the Step 3 finding of disability.” (Statement of Errors at 14.) Following its review, the Court accepted the logic of Plaintiff's position that a reopened prior claim should be reviewed comprehensively, and remanded the case for consideration of Plaintiff's claim to several additional months of SSI benefits. The Court upheld the res judicata finding regarding Plaintiff's DIB claim.


         The EAJA provides, ...

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