UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

JADRANKA SAMONA, 

 Plaintiff, 

v. 

COMMISSIONER OF SOCIAL 

SECURITY, 

 Defendant. 

Case No. 2:15-cv-11713 

District Judge Mark A. Goldsmith 

Magistrate Judge Anthony P. Patti 

___________________________________/ 

REPORT AND RECOMMENDATION TO DENY PLAINTIFF’S 

APPLICATION FOR ATTORNEYS’ FEES UNDER THE EAJA (DE 30) 

I. RECOMMENDATION: This matter is before me for consideration of 

Plaintiff’s application for attorneys’ fees under the Equal Access to Justice Act 

(EAJA) (DE 30), Defendant’s response in opposition (DE 31), and Plaintiff’s reply 

(DE 32). For the reasons that follow, I recommend that the Court DENY

Plaintiff’s application. 

II. REPORT 

A. Procedural Background 

 Plaintiff filed her applications for disability insurance (DI) and supplemental 

security income (SSI) benefits during August 2012, alleging that she has been 

disabled since March 16, 2011. (R. at 146-154.) Plaintiff’s applications were 

denied and she sought a de novo hearing before an Administrative Law Judge 

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(“ALJ”). ALJ Richard Sasena held a hearing on February 19, 2014. (R. at 41-69.) 

He subsequently determined that Plaintiff was not disabled within the meaning of 

the Social Security Act. (R. at 23-40.) On February 6, 2015, the Appeals Council 

denied Plaintiff’s request for review. (R. at 14-19.) ALJ Sasena’s decision 

became the Commissioner’s final decision. 

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

motion for summary judgment, she set forth two statements of error: (1) that the 

ALJ erred in his credibility assessment by not clearly explaining the bases on 

which he discounted her credibility, including the use of boilerplate language, and 

(2) that the ALJ erred in his weighing of the opinion evidence by failing to give 

good reasons for discounting the opinions of her treating physician, Dr. Dell. (DE 

20; see also DE 23.) The Commissioner opposed Plaintiff’s motion, asserting that 

she was entitled to a grant of summary judgment because substantial evidence 

supported the ALJ’s conclusions. (DE 22.) 

 On June 24, 2016, I issued a Report and Recommendation to remand the 

case to the Commissioner and the ALJ under Sentence Four of § 405(g) for further 

consideration. (DE 24.) As to the first issue, I concluded that, while the ALJ did 

not err merely by using boilerplate language or mentioning Plaintiff’s financial 

interest in the proceedings, the ALJ’s reasons for discounting Plaintiff’s credibility, 

as a whole, were not articulated in a manner that allowed the Court to trace the 

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path of his reasoning. In other words, the ALJ’s credibility analysis failed to 

provide an accurate and logical bridge and did not allow for meaningful review by 

the Court. (DE 24 at 20-21.) As to the second issue, I stated: 

The ALJ discounted these opinions on the bases that they were not 

supported by Dr. Dell’s treatment notes, nor by the other evidence of 

record, including Plaintiff’s normal examinations and her gait at the 

hearing. While Defendant is correct that these are all proper bases on 

which to discount the opinion of a treating physician, the ALJ’s 

analysis suffers from the same defect as mentioned above: there is no 

logical bridge between the evidence and the result. For example, the 

ALJ does not describe which of Dr. Dell’s treatment notes are 

inconsistent with his opinion. Nor does he explain any inconsistency 

with the record. Instead, as Plaintiff correctly points out, Dr. Dell’s 

opinion that she could never crouch is consistent with the opinion of 

the Consultative Examiner, Ernesto Bedia, M.D., who made the same 

finding. (R. at 718.) Again, substantial evidence may support the 

ALJ’s decision to discount Dr. Dell’s opinion, but there is nothing in 

the opinion to guide the Court to what that evidence may be. 

(DE 24 at 25.) Ultimately, I recommended that the Court remand the matter to the 

Commissioner for further consideration and analysis of Plaintiff’s credibility and 

to re-weigh the opinion evidence in a manner that makes clear the reasons for the 

weight given, especially as it pertains to Plaintiff’s treating physician Dr. Dell. 

(DE 24 at 26.) 

No objections were filed. On July 20, 2016, the Court entered an order: (1) 

accepting the recommendation contained in the report and recommendation dated 

June 24, 2016; (2) granting Plaintiff’s motion for summary judgment (DE 20); (3) 

denying Defendant’s motion for summary judgment (DE 22); and, (4) reversing 

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the decision of the Commissioner, and (5) remanding the matter to the 

Commissioner. (DE 25.) 

B. The Instant Motion 

 The Court has already ordered that Plaintiff is to be refunded costs in the 

amount of $400.00. (See DEs 27, 28, 29.) In the instant motion, Plaintiff seeks 

attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, in 

an amount of $6,172.48, consisting of 30.55 attorney hours at $184.50/hour in 

2015 and 2016 ($5,636.48) and 5.36 paralegal hours at $100/hour ($536.00). (DE 

30 at 10.) In support of this request, Plaintiff argues that Defendant’s position was 

not “substantially justified,” as evidenced by the report and recommendation’s 

conclusions as to credibility and opinion evidence. (DE 30 ¶ 7.) In addition, 

Plaintiff argues that the ALJ’s actions were unreasonable and the Commissioner’s 

position defending the denial of benefits “was based on flawed reasoning and 

misapplication of the law.” (DE 30 ¶ 9; see also DE 32.) 

 The Commissioner opposes Plaintiff’s application and argues that her 

position was substantially justified for two reasons. First, she contends that the 

Court remanded for “insufficient articulation,” not because of a “lack of substantial 

evidence.” (DE 31 at 3-4.) Second, she contends that she “reasonably relied on 

facts and law for her litigation position.” (DE 31 at 4-5.) 

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 Plaintiff has filed a reply, and Judge Goldsmith has referred Plaintiff’s 

application to me for entry of a report and recommendation. (DEs 32, 33.) 

C. Standard of Review 

“In separate provisions, the EAJA allows a prevailing party other than the 

United States to recover fees and expenses incurred ‘in any civil action’ brought by 

or against the United States, 28 U.S.C. § 2412(d)(1)(A), or in an ‘adversary 

adjudication’ conducted by an agency of the United States, 5 U.S.C. § 504.” Tri–

State Steel Const. Co., Inc. v. Herman, 164 F.3d 973, 977 (6th Cir.1999). Plaintiff 

filed the instant request pursuant to 28 U.S.C. § 2412, which provides, in pertinent 

part: 

[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. 

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 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. 

 Instead, the parties dispute whether the Commissioner’s position was 

“substantially justified.” (DE 30 ¶¶ 7, 9; DE 31 at 1, 5.) “The Commissioner’s 

position may be substantially justified even if a district court rejects it.” DeLong v. 

Commissioner of Soc. Sec., 748 F.3d 723, 725 (6th Cir. 2014) (citing Couch v. Sec. 

of Health & Human Servs., 749 F.2d 359, 360 (6th Cir. 1984)). Stated otherwise, 

“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 

1. “Insufficient articulation” versus “lack of substantial 

evidence” 

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 As the Commissioner points out, the Court’s remand was based on 

articulation errors. (DE 31 at 3.) First, as to “inconsistencies in the evidence,” I 

stated “[s]ubstantial evidence may support the ALJ’s credibility analysis . . .[,]” 

yet, at the same time, I noted that the ALJ failed to adequately articulate his 

analysis. (DE 24 at 18-19.) Second, as to “normal gait,” I stated it was “unclear” 

how the ALJ’s observation of Plaintiff’s gait at the hearing “makes [her] testimony 

less credible.” (Id. at 19-20.) Third, my summation on credibility stated both that 

“the ALJ’s reasons for discounting Plaintiff’s credibility, as a whole, are not 

articulated in a manner that allows this Court to trace the path of his reasoning[,]” 

and that “the rest of the ALJ’s credibility analysis fails to provide that accurate and 

logical bridge and does not allow for meaningful review by this Court.” (Id. at 20-

21.) Fourth, as to opinion evidence, I stated that: “the ALJ’s analysis suffers from 

the same defect as mentioned above: there is no logical bridge between the 

evidence and the result[,]” and “substantial evidence may support the ALJ’s 

decision to discount Dr. Dell’s opinion, but there is nothing in the opinion to guide 

the Court to what that evidence may be.” (Id. at 25.) As the Sixth Circuit has 

instructed, “an ALJ’s failure to provide an adequate explanation for his findings 

does not establish that a denial of benefits lacked substantial justification.” 

DeLong, 748 F.3d at 727. 

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Plaintiff contends that DeLong is distinguishable, pointing out that, in that 

case, the ALJ’s failure to provide “good reasons” for the weight given to DeLong’s 

treating physicians’ opinions was “the (sole) reason that the District Court vacated 

the Commissioner's decision and remanded DeLong's case for further proceedings 

in the first place.” Id. at 726 (emphasis added). (DE 32 at 3.) By comparison, 

Plaintiff contends that, in her case, the ALJ’s erroneous credibility assessment was 

not solely based on “insufficient articulation.” Rather, Plaintiff contends that the 

ALJ and Commissioner “failed to follow this circuit’s . . . well established case 

law.” (DE 32 at 4.) 

 In essence, Plaintiff is challenging the Commissioner’s statement that “this 

Court remanded due to articulation errors alone . . . .” (DE 31 at 5 (emphasis 

added).) True, as Plaintiff points out, my recommendation included remand “for 

further consideration and analysis of Plaintiff’s credibility . . . .” (DE 24 at 26, DE 

32 at 3.) Also, Plaintiff specifically noted my citation to Meece v. Barnhart, 192 

F.App’x 456, 465 (6th Cir. 2006) and statement that: 

There is nothing about Plaintiff’s ability to walk normally into and out 

of a hearing that makes [her] allegation [about disabling knee pain 

that causes her leg to lock up or collapse at times] any less credible, 

and while the ALJ’s lay observations are permissible, they should not 

be elevated to the level of medical opinion. 

(DE 24 at 20, DE 32 at 3-4.) However, this same paragraph also states, “it is 

unclear how this observation [of Plaintiff’s gait at the hearing] makes Plaintiff’s 

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testimony less credible.” (DE 24 at 20 (emphasis added).) Thus, the character of 

this Court’s decision remains based on “articulation errors.” 

 2. Facts and law for litigation position 

The Commissioner bears the burden of establishing that her position was 

substantially justified. DeLong, 748 F.3d at 725-726 (citing Scarborough v. 

Principi, 541 U.S. 401, 414-415 (2004)); see also Noble v. Barnhart, 230 F. App’x 

517, 519 (6th 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.”). The Government 

discharges its burden “by demonstrating that the position had a ‘reasonable basis 

both in law and fact[.]’” DeLong, 748 F.3d at 726 (quoting Pierce v. Underwood, 

487 U.S. 552, 565 (1988)). 

The Commissioner contends her positions “had a reasonable basis in fact 

and law.” (DE 31 at 4-5.) Here, too, Plaintiff contends DeLong is distinguishable. 

(DE 32 at 4.) In DeLong, the Sixth Circuit observed that the district court 

“narrowly” remanded, “expressly observing that ‘[t]he record did not strongly 

establish [DeLong's] entitlement to benefits.’ (Emphasis added.)” DeLong, 748 

F.3d at 726. By comparison, and with reference to my report and 

recommendation’s summary of Plaintiff’s medical history, Plaintiff contends that 

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“the Court here makes no indication that the record did not strongly establish 

Plaintiff’s entitlement to benefits.” (DE 32 at 4-5, DE 24 at 3-4.) 

However, even if the Court’s recommendation did not so indicate, the 

Commissioner points out that her earlier cross-motion for summary judgment 

referred to, among other things: 

(a) The ALJ’s reliance upon CE Dr. Bedia’s March 7, 2014 notes, 

which reflected that Plaintiff was “ambulatory with a stable 

gait.” (DE 22 at 11, R. at 33, 710 [Ex. 13F].) 

(b) The ALJ’s notation that Plaintiff “walked in and out of the 

hearing room with a normal gait.” (DE 22 at 11, R. at 32) 

(c) The ALJ’s statement that the March 24, 2011 MRI (of the right 

knee) showed “severe chrondromalacia as well as other mild 

degenerative findings[.]” (DE 22 at 14, R. at 32-33, 471-472 

[Ex. 6F]; see also DE 22 at 5-6); 

(d) The ALJ’s finding that the limitations described in Dr. Dell’s 

physical RFC assessments (Exs. 11F & 12F [R. at 700-707]) 

were not supported by his treatment notes (Ex. 6F [R. at 433-

499]), nor were they supported by the other evidence of record. 

(DE 22 at 16, R. at 33.)1

 

(DE 31 at 4-5.)2

 As such, the Commissioner has shown that her position had a 

reasonable basis in fact. Plaintiff’s reference to my summary of his medical 

 

1

 In both her motion for summary judgment and her response to Plaintiff’s 

application, the Commissioner points to: (a) January 12, 2012 records from 

L. Dell, M.D. (R. at 437); and (b) 2013 records from Lakes Medical Center 

(R. at 697-698). (See DE 31 at 4, DE 22 at 16.) 

2

 The ALJ particularly noted, “the normal exams and gait as noted above and 

the observation of the claimant at the hearing.” (R. at 33.) Perhaps this was 

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history – an introductory portion of my recommendation – does not successfully 

attack the Commissioner’s showing. 

Moreover, with reference to Meece, Plaintiff contends that the ALJ and the 

Commissioner “failed to follow this circuit’s . . . well established case law[,]” and 

that the Commissioner “ignored longstanding case law . . . .” (DE 32 at 4, 5.) In 

Meece, the Sixth Circuit stated: 

While the ALJ discounted the extent of Plaintiff's headache pain due 

to the fact that Plaintiff's doctors failed to prescribe Fiorinal, Imitrex, 

or Zomig, the ALJ may not substitute his own medical judgment for 

that of the treating physician where the opinion of the treating 

physician is supported by the medical evidence. . . . While the ALJ 

may have prescribed different pain medication than that prescribed by 

Plaintiff's doctors, this decision is beyond the expertise of the ALJ and 

is not a legitimate basis for an adverse credibility determination. 

Meece, 192 F. App'x at 465 (emphasis added). To be sure, Plaintiff cited Meece in 

her motion for summary judgment (DE 20 at 14), and Defendant attempted to 

distinguish it (DE 22 at 13 n.3), after which I cited it in support of my statement 

that “[t]here is nothing about Plaintiff’s ability to walk normally into and out of a 

hearing that makes this allegation any less credible, and while the ALJ’s lay 

observations are permissible, they should not be elevated to the level of medical 

opinion.” (DE 24 at 20.) 

 

a reference to the normal portion of Plaintiff’s June 20, 2011 

musculoskeletal examination, to which the ALJ had earlier referred. (See R. 

at 33, 415-422 [Ex. 4F].) 

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Here, I disagree with Plaintiff that the Commissioner “did not have a 

reasonable basis in . . . law.” (See DE 32 at 5.) First, as Defendant points out, her 

motion noted that “an ALJ's credibility determinations about the claimant are to be 

given great weight,” Cruse v. Comm'r of Soc. Sec., 502 F.3d 532, 542 (6th Cir. 

2007), and cited to the treatment relationship factor, 20 C.F.R. §§ 

404.1527(c)(2),416.927(c)(2). (DE 31 at 4-5, DE 22 at 11, 16.) Second, 

Defendant’s February 24, 2016 argument that Meece does not apply to Plaintiff’s 

case explained: “In Meece the ALJ mistakenly speculated that the claimant could 

have taken more powerful headache medicines. The court found this speculation 

improper. But in the present case the ALJ merely noted Plaintiff walked normally, 

despite claiming disabling knee pain.” (DE 22 at 13 n.3 (internal citations 

omitted).) That this Court relied upon Meece in its recommendation to remand, 

does not, alone, make the Commissioner’s attempt to distinguish it unreasonable. 

Plaintiff characterizes my recommendation as having found that “the ALJ failed to 

follow Meece . . . .” (DE 32 at 4, 5; DE 24 at 20.) This is an over-statement; 

however, even if that were true, Defendant should not be penalized for her 

reasonable attempt to argue the case in her favor or to distinguish it. 

 3. Conclusion 

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

substantially justified, and Plaintiff’s arguments in reply are unconvincing. Albeit 

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in an unpublished case, the Sixth Circuit has instructed: “The issue, when 

considering an award of attorney’s fees to a prevailing party under the EAJA, is 

not whether the ALJ gave adequate articulation for 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., No. 98-6284, 

1999 WL 1045072, at *4 (6th Cir. Nov. 12, 1999). In Anderson, the Sixth Circuit 

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

District Court remanded “for further consideration because of an articulation error . 

. . [,]” but did not find that “the Commissioner’s position was necessarily wrong on 

the merits.” Id. at *6. 

Here, the Court remanded for “further consideration and analysis of 

Plaintiff’s credibility and to re-weigh the opinion evidence in a manner that makes 

clear the reasons for the weight given, especially as it pertains to Plaintiff’s 

treating physician Dr. Dell.” (DE 24 at 26 (emphasis added).) Much like the 

Anderson case, the Court here determined that the ALJ’s opinion was not explicit 

enough when discounting Plaintiff’s credibility or Dr. Dell’s opinion. (DE 24 at 

20-21, 25-26). 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 

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

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 application. (DE 30.) 

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. Sullivan, 931 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 

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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 

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

merit, it may rule without awaiting the response. 

Dated: September 19, 2017 s/Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

Certificate of Service 

I hereby certify that a copy of the foregoing document was sent to parties of 

record on September 19, 2017, electronically and/or by U.S. Mail. 

 

 s/Michael Williams 

 Case Manager for the 

 Honorable Anthony P. Patti 

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