UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ALBERT HENRY SAMUEL 

McKEEL, 

 Plaintiff, 

v. 

COMMISSIONER OF SOCIAL 

SECURITY, 

 Defendant. 

Case No. 2:14-cv-12815 

District Judge Gershwin A. Drain 

Magistrate Judge Anthony P. Patti 

___________________________________/ 

RECOMMENDATION TO DENY PLAINTIFF’S MOTION FOR AWARD 

OF ATTORNEY’S FEES (21) 

I. RECOMMENDATION: This matter is before me for consideration 

of Plaintiff’s motion for attorney’s fees (DE 21 and 22), Defendant’s response in 

opposition (DE 23), and Plaintiff’s reply (DE 24). For the reasons that follow, I 

recommend that Plaintiff’s motion be DENIED. 

II. REPORT 

A. Procedural Background 

 Plaintiff protectively filed his applications for social security disability 

benefits and supplemental security income on November 14, 2011, alleging that he 

had been disabled since August 5, 2011, at age 51, as a result of obesity, chronic 

pain, end-stage patellofemoral arthritis (left knee), right total knee arthroplasty, 

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spinal disc disease at L3-S1, and left ankle pain. (R. at 171-174.) Plaintiff’s 

application was denied and he sought a de novo hearing before an Administrative 

Law Judge (“ALJ”). ALJ Lawrence C. Blatnik held a hearing on February 28, 

2013 and subsequently determined that Plaintiff was not disabled within the 

meaning of the Social Security Act. (R. at 12-58.) On May 30, 2014, the Appeals 

Council denied Plaintiff’s request for review. (R. at 1-3.) 

 Plaintiff then timely commenced the instant action in federal court. In his 

motion for summary judgment, he set forth three statements of error: 1) that the 

ALJ improperly afforded less weight to the opinion of treating physician Dr. Mark 

Kelley; 2) that the ALJ erred in his conclusion that Plaintiff’s medical impairments 

failed to meet the severity of the impairments listed in 20 C.F.R. Part 404, Subpart 

P, Appendix 1, specifically Listings 1.02 and 1.03; and 3) that the ALJ failed to 

consider his impairment of obesity when assessing his RFC. The Commissioner 

opposed Plaintiff’s motion, asserting that the ALJ’s decision was supported by 

substantial evidence. 

 On May 20, 2015, I issued a Report and Recommendation to remand the 

matter back to the Commissioner for further administrative proceedings pursuant 

to Sentence Four of 42 U.S.C. § 405(g). (DE 18.) Specifically, I concluded that 

the ALJ’s consideration of the severity of Plaintiff’s impairments met or medically 

equaled Listings 1.02 and 1.03 was not supported by substantial evidence, because 

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the ALJ merely stated that Plaintiff’s impairments did “not meet the criteria of 

Listing 1.02 or any other listing.” (Id. at 18-19.) The Commissioner argued, 

correctly, that the ALJ was not required to discuss every Listing, but I concluded 

that the ALJ erred in this instance because the record raised a substantial question 

as to whether Plaintiff could qualify as disabled under the listing. (Id. at 19.) I 

further pointed out that the record lacked expert opinion evidence on the issue of 

whether Plaintiff’s conditions met or medically equaled a Listing, and 

recommended a remand in order to fully develop the record in this respect. (Id. at 

18.) 

 For the same reason, I concluded that the Court was unable to meaningfully 

review the ALJ’s weighing of opinion evidence because the record in this case was 

undeveloped. Finally, although Plaintiff did not meet his burden to show how his 

obesity, in combination with his other impairments, limited his ability to a degree 

inconsistent with the RFC, I recommended that the ALJ consider Plaintiff’s obesity 

in combination with his review of the Listing impairments on remand. I 

specifically pointed to S.S.R. 02-1P, which states that “someone with obesity and 

arthritis affecting a weight-bearing joint may have more pain and limitation than 

might be expected from the arthritis alone,” because the ALJ found Plaintiff’s 

osteoarthritis to be a severe impairment. In sum, my recommendation for remand 

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centered on the ALJ’s failure to analyze Plaintiff’s impairments under Listings 

1.02 and 1.03. 

B. The Instant Motion 

 In the instant motion, Plaintiff seeks costs and attorney fees under the Equal 

Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, because the Court remanded 

his case for further administrative proceedings. He asserts that the 

Commissioner’s position in opposing his motion for remand was not substantially 

justified because was the prevailing party, that the Court held in his favor on all 

three statements of error, and that the Commissioner’s position was not justified in 

law or fact. 

 The Commissioner opposes Plaintiff’s motion and argues that her position 

was substantially justified for several reasons. First, she points out that she was 

forthcoming about all issues in her briefing, including her decision to address the 

fact that the record lacked a medical opinion, which Plaintiff did not discuss in his 

initial motion. Second, she disagrees with Plaintiff’s contention that the Court 

found in his favor on all issues. Specifically, she notes that the Court did not 

express an opinion on Plaintiff’s obesity argument, which was not an independent 

ground for remand. 

 C. STANDARD OF REVIEW 

The EAJA provides in pertinent part: 

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[A] court shall award to a prevailing party other than the United States 

fees and other expenses, in addition to any costs awarded pursuant to 

subsection 

 (a), 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). Applying the foregoing authority, an award of fees requires 

that 1) the plaintiff was the prevailing party, 2) the government’s position was not 

substantially justified, and 3) no special circumstances make an award of fees 

unjust. 

 A party is considered to have prevailed where it has been the victor in a 

lawsuit or has “vindicated important rights through a consent judgment.” Citizens 

Coal.for Block Grant Compliance, Inc. v. City of Euclid, 717 F. 2d 964, 966 (6th 

Cir. 1983) (internal quotations omitted). The court will generally confer 

prevailing-party status on a plaintiff who has won a Sentence 4 remand. Sec’y v. 

Schaefer, 509 U.S. 292, 300 (1993). Here, neither party disputes Plaintiff’s status 

as the prevailing party. 

 The Commissioner bears the burden of establishing that her position was 

substantially justified, which is defined as “justified, both in fact and in law, to a 

degree that could satisfy a reasonable person.” Jankovich v. Bowen, 868 F.2d 867, 

869 (6th Cir. 1989); see also Noble v. Barnhart, 230 F. App’x 517, 519 (6th 

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6

Cir.2007) (“[T]he position of the government will be deemed to be substantially 

justified if there is a genuine dispute, or if reasonable people could differ as to the 

appropriateness of the contested action.”). “However, the fact that the 

Commissioner’s decision was found to be supported by less than substantial 

evidence ‘does not mean that it was not substantially justified.’” Hutchinson v. 

Comm’r of Soc. Sec., No. 12-CV-11337, 2014 WL 2050859, at *4 (E.D. Mich. 

May 17, 2014) (quoting Bates v. Callahan, 124 F.3d 196, 196 (6th Cir 1997)). 

D. ANALYSIS 

 In the instant motion, the parties dispute whether the Commissioner’s 

position was substantially justified. Plaintiff asserts that the Commissioner’s 

position was not substantially justified because he prevailed on all three issues 

raised. The Commissioner disagrees with Plaintiff’s assertion, noting that the 

ALJ’s analysis of his obesity was not an independent reason for remand. Further, 

the Commissioner argues that the Court primarily remanded the case because she 

addressed the lack of a medical opinion with regard to whether or not Plaintiff’s 

impairments met or medically equaled a listing without prompting from Plaintiff’s 

briefing. Finally, she asserts that reasonable minds could differ on whether the 

ALJ was required to discuss Listings 1.02 and 1.03 because there was evidence in 

the record of Plaintiff’s effective ambulation. 

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 The Commissioner has met her burden of establishing that her position was 

substantially justified. First, as noted above, the Court did not find the ALJ’s 

analysis of Plaintiff’s obesity as an independent basis of remand, but instead 

directed the ALJ to further consider the impact of his obesity on his arthritis upon 

remand, thereby undercutting Plaintiff’s main argument that he prevailed on all 

three issues. Second, the Commissioner is correct that she introduced the issue on 

which the remand was based—that there was no medical equivalence evidence—

without prompting from Plaintiff’s briefing. (DE 18 at 21.) See Powell v. Colvin, 

No. 5:12-cv-00157, 2014 WL 1514322, at *2 (W.D. Ky. Apr. 16, 2014) (finding 

the Commissioner’s position substantially justified where “Plaintiff did not 

explicitly make the claims that resulted in remand”). Third, the Commissioner is 

correct that there was some evidence in the record to support Plaintiff’s ability to 

ambulate effectively such that reasonable people could disagree, despite the fact 

that the Court ultimately concluded that the ALJ failed to appropriately articulate 

whether or not Plaintiff’s impairments met or medically equaled a Listing. 

 Finally, “[t]he issue when considering an award of attorney’s fees to a 

prevailing party under the EAJA, is not whether the ALJ gave adequate articulation 

of his [or her] findings, but whether the Commissioner was justified in supporting 

the ALJ’s decision to deny benefits based on the record.” Anderson v. Comm’r of 

Soc. Sec., 198 F.3d 244, at *4 (6th Cir. 1999). In Anderson, the Sixth Circuit 

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concluded that the Commissioner’s position was substantially justified where the 

District Court remanded “for further consideration of an articulation error,” but did 

not conclude that the Commissioner’s position was necessarily wrong on the 

merits. Id. at *6. Here, the Court remanded for further development of the record 

and articulation of whether Plaintiff’s impairments met or medically equaled 

Listings 1.02 or 1.03. The Court did not conclude that the ALJ erred in denying 

disability benefits by failing to apply the sequential analysis incorrectly. Instead, 

much like the Anderson case, the Court determined that the ALJ’s opinion was not 

explicit enough in this regard. Id.; see also Goff v. Astrue, No. 08-141-ART, 2009 

WL 648965, at *1 (E.D. Ky. Mar. 10, 2009) (concluding that the claimant was not 

entitled to an award of attorney’s fees under the EAJA because the court “did not 

remand . . . because the ALJ was incorrect in his decision but rather on a technical 

point—the ALJ needed to explain his reasoning in ordering a consultative exam.”). 

The Court did not find that Plaintiff’s impairments met or medically equaled a 

Listing impairment. Nor did it find that the ALJ’s decision was clearly erroneous 

to the extent that an immediate award of benefits was necessary. Accordingly, 

even though the Court ultimately concluded that the Commissioner’s position was 

wrong, there is no indication that it was not substantially justified. I therefore 

recommend that the Court DENY Plaintiff’s motion. (DE 21.) 

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III. PROCEDURE ON OBJECTIONS

 The parties to this action may object to and seek review of this Report and 

Recommendation, but are required to file any objections within 14 days of service, 

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 

72.1(d). Failure to file specific objections constitutes a waiver of any further right 

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health & 

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some 

issues but fail to raise others with specificity will not preserve all the objections a 

party might have to this Report and Recommendation. Willis v. Sec’y of Health & 

Human Servs., 932 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of 

Teachers Local 231, 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 

72.1(d)(2), any objections must be served on this Magistrate Judge. 

 Any objections must be labeled as “Objection No. 1,” and “Objection No. 

2,” etc. Any objection must recite precisely the provision of this Report and 

Recommendation to which it pertains. Not later than 14 days after service of an 

objection, the opposing party may file a concise response proportionate to the 

objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich LR 

72.1(d). The response must specifically address each issue raised in the objections, 

in the same order, and labeled as “Response to Objection No. 1,” “Response to 

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Objection No. 2,” etc. If the Court determines that any objections are without 

merit, it may rule without awaiting the response. 

Dated: August 19, 2015 s/Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

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