United States District Court, D. Maine
ORDER ON MAGISTRATE JUDGE'S RECOMMENDED
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
March 28, 2018, the Court affirmed the Magistrate Judge's
recommended decision dismissing Plaintiff's Title II
claim and remanding his Title XVI claim for further
proceedings. Order Affirming the Recommended Decision of
the Magistrate Judge (ECF No. 24). On June 26, 2018,
Plaintiff filed a motion seeking attorney's fees and
expenses under the Equal Access to Justice Act (EAJA).
EAJA Appl. for Fees and Expenses (ECF No. 26). On
July 17, 2018, the Defendant, the Commissioner of the Social
Security Administration, responded in opposition to the
Plaintiff's application. Def.'s Opp'n to
Pl.'s EAJA Appl. for Fees and Expenses (ECF No. 27).
On July 31, 2018, Plaintiff filed a reply to the
Commissioner's response. Pl.'s Reply Mem.
(ECF No. 28). On September 12, 2018, the Magistrate Judge
granted in part Plaintiff's motion for attorney's
fees and expenses under the EAJA. Recommended
Decision on Appl. for Att'y's Fees (ECF No.
29) (Recommended Decision on Application for EAJA
Magistrate Judge noted Plaintiff was previously successful in
this Court on his argument that because the SSA Appeal
Council decided to reopen his 2011 SSI application, it was
required to review his application comprehensively and thus
consider several additional months of SSI benefits than it
intended to consider. Id. at 3-4. The Magistrate
Judge also acknowledged that the Court rejected
Plaintiff's arguments pertaining to his disability
insurance benefits (DIB) under Title II. Id. at 2-4.
Because Plaintiff was successful on one of his claims, but
not the other, the Magistrate Judge concluded that Plaintiff
was entitled to attorney's fees and expenses in
connection with the successful SSI claim, but not his DBI
claim. Id. at 6. Accordingly, the Magistrate Judge
granted Plaintiff's application to recover attorney's
fees for his SSI claim and directed him to “file an
itemized statement reflecting the fees incurred in connection
with the prosecution of the SSI claim, together with a
written argument in support of the modified request.”
Id. The Magistrate Judge deferred “ruling on
Defendant's other challenges to the fees (i.e., the
paralegal rate and the amount of time devoted to particular
tasks) until after the Court has reviewed the modified
request and Defendant's response.” Id.
September 26, 2018, Plaintiff filed his modification
application for EAJA fees. Modified EAJA Appl. for
Fees (ECF No. 34). On that same day, the Defendant filed
an objection to the Magistrate Judge's recommended
decision on the Plaintiffs' application for EAJA fees and
expenses. Def.'s Obj. to the Magistrate
Judge's Recommended Dec. on Pl.'s Appl. for
Att'y[‘s] Fees (ECF No. 31) (Obj. to
Recommended Decision). On October 9, 2018, Plaintiff
responded to the Defendant's objection to the recommended
decision. Pls.' Resp. to Obj. to R. & R.
Dec. (ECF No. 35). On October 10, 2018, the Defendant
responded to Plaintiff's modified application for
attorney's fees and expenses, and Plaintiff replied on
October 24, 2018. Def.'s Opp'n to Pl.'s
Modified EAJA Appl. for Fees and Expenses (ECF No. 36)
(Def.'s Opp'n to Modified EAJA Appl.);
Reply to Resp. to the Suppl. EAJA Appl. (ECF No.
37). On November 20, 2018, the Magistrate Judge issued a
recommended decision on the Plaintiff's modified
application and recommended the Court award the Plaintiff $3,
261.94 in fees. Recommended Decision on Modified Appl.
for Att'y's Fees at 1-2 (ECF No. 38)
(Recommended Decision on Modified Application for EAJA
Fees). On November 26, 2018, Plaintiff filed a
supplemental application for attorney's fees. Suppl.
EAJA Appl. for Fees (ECF No. 39). The Commissioner has
not objected to the supplemental application.
Objection to Recommended Decision
EAJA, a party prevailing against the United States in court,
including successful Social Security benefits claimant, may
be awarded fees payable by the United States if the
Government's position in the litigation was not
‘substantially justified.'” Gisbrecht v.
Barnhart, 535 U.S. 789, 796 (2002) (quoting 28 U.S.C.
§ 2412(d)(1)(A)). It is the Government's burden to
show its position was substantially justified. McDonald
v. Sec'y of Health and Human Servs., 884 F.2d 1468,
1475 (1st Cir. 1989). “A position of the United States
is substantially justified if it is justified to a degree
that could satisfy a reasonable person-that is, if the
position has a reasonable basis both in law and fact.”
McLaughlin v. Hagel, 767 F.3d 113, 117 (1st Cir.
2014) (citation and internal quotation marks omitted). The
Court looks to the defendant's positions both prior to
litigation and during litigation in evaluating whether its
position was substantially justified. See id.;
Saysana v. Gillen, 614 F.3d 1, 5 (1st Cir. 2010).
Defendant does not dispute the Plaintiff was the prevailing
party but argues that she was substantially justified in her
position and that the Magistrate Judge overlooked her related
arguments. Obj. to Recommended Decision at 1-3;
Def.'s Opp'n to Modified EAJA Appl. at 2.
The Defendant disagrees with the Recommended Decision on
Application for EAJA Fees' use of Hensley v.
Eckerhart, 461 U.S. 424 (1983) and says Hensley
“has nothing to do with whether a party's position
was substantially justified.” Obj. to Recommended
Decision at 1. The Defendant takes issue with placing
“the seminal U.S. Supreme Court case [Pierce v.
Underwood, 487 U.S. 552 (1988)] concerning
‘substantial justification' . . . in passing in a
footnote . . ..” Id. at 2. Accordingly, the
Defendant asserts “the Recommended Decision singularly
fails to address the Commissioner's thorough discussion
addressing the substantial justification issue.”
Id. The Defendant maintains her position was
substantially justified because:
(1) the Appeals Council properly stated that it considered
the entire record and found, based on Dr. Kaplan's
testimony, that Plaintiff met a Listing as of November 15,
2012; (2) the Court's remand decision did not arise from
Plaintiff's specific allegations of error; and (3) the
Court rejected all of Plaintiff's Title II arguments.
Id. at 3. In response to the Plaintiff's
modified application for attorney's fees and expenses
under the EAJA, the Defendant reiterates this argument but
alters her third reason for why her position was
substantially justified as to the Plaintiff's SSI claim,
writing, “even if Plaintiff alleged the specific error
that was the basis of remand, the Commissioner had a
‘reasonable basis in fact and law' to defend her
position.” Def.'s Opp'n to Modified EAJA
Appl. at 2. The Plaintiff dismisses the Defendant's
argument, stating, “the Defendant is simply complaining
about opinion writing technique” and that the
Magistrate Judge did consider substantial justification but
rejected and preceded past the Defendant's position by
incorporating Hensley and reducing his claims for
attorney's fees and expenses. Pls.' Resp. to Obj.
to R. & R. Dec. at 2.
Court disagrees with the Defendant. First, the recommended
decision on the Plaintiff's initial application for
attorney's fees and expenses did not fail to address the
Defendant's substantial justification position. The
Magistrate Judge discussed substantial justification multiple
times throughout the recommended decision. See
Recommended Decision on Application for EAJA Fees at 4
& n.3, 6 & n.4. While the Defendant takes issue with
the recommended decision's placement of its substantial
justification discussion, that does not mean the Magistrate
Judge failed to consider the argument. Cf.
Roque-Rodríguez v. Lema Moya, 926 F.2d 103, 105
& n.3 (1st Cir. 1991) (citation omitted)); Earnhardt
v. Puerto Rico, 744 F.2d 1, 3 (1st Cir. 1984)
(“Although the district court gave no reason for the
denial of the motion, it was not required to do so under the
rules and we must assume that the motion received careful
does it show the Magistrate Judge committed error. As the
Plaintiff highlights, and contrary to the Defendant's
position, the recommendation decision's use of
Hensley was not incorrect as it stated, “the
Hensley approach essentially incorporates the
concepts of prevailing party and substantial
justification.” Recommended Decision on Application
for EAJA Fees at 6 n.4. In other words, in analyzing the
interrelationship between successful and unsuccessful claims
under Hensley, that analysis required prior
consideration of whether the plaintiff was a prevailing party
on any claim and whether the Government was substantially
justified in its position as to any claim. The Court finds no
error in this reasoning.
evaluating the merits of the Defendant's substantial
justification argument, moreover, the Court finds the
Commissioner has not met her burden. The record illustrates,
contrary to the Defendant's contention, that it was the
Plaintiff's argument that the Defendant erred in not
conducting “a full five step evaluation for so much of
the period as was not resolved by the Step 3 finding of
disability” that served as the basis for remand.
Pl.'s Itemized Statement of Errors at 14 (ECF
No. 13); R. & R. Decision at 14-15 (ECF No. 21);
Order Affirming the Recommended Decision of the
Magistrate Judge at 3. Moreover, the Defendant
previously asserted “that the decision of the Appeals
Council regarding the onset of disability was informed by the
entire record and, therefore, there is no cause to remand the
reopened SSI claim to determine whether an earlier onset date
could be assessed at step 5 based on a residual functional
capacity. . ..” R. & R. Decision at 5. In
reviewing the record, however, the Magistrate Judge concluded
“that Defendant has not previously ...