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Tracey S. v. Social Security Administration Commissioner

United States District Court, D. Maine

April 23, 2019

TRACEY S., Plaintiff,
v.
SOCIAL SECURITY ADMINISTRATION COMMISSIONER, Defendant.

          ORDER ON MAGISTRATE JUDGE'S RECOMMENDED DECISIONS

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         I. BACKGROUND

         On 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 Fees).

         The 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.

         On 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.

         II. DISCUSSION

         A. Objection to Recommended Decision

         “Under 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).

         The 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 . . ..”[1] 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.

         The 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 consideration”).

         Nor 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.

         In 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 ‚Äúthat Defendant has not previously ...


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