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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

NANCY S. WOODARD, 

Plaintiff, Case No. 2:11-cv-1055 

JUDGE GREGORY L. FROST 

v. Magistrate Judge Kemp 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant.

OPINION AND ORDER

 In this action, Plaintiff Nancy S. Woodard sought review of Defendant Commissioner of 

Social Security’s (“Commissioner”) decision denying her applications for disability insurance 

benefits and supplemental security income. This Court previously remanded this case to the 

Commissioner for further proceedings after sustaining Woodard’s objections to a Report and 

Recommendation that the Court enter judgment in favor of the Commissioner. (Opinion and 

Order, ECF No. 21.) 

 Following this Court’s decision remanding the case, Woodard filed an application for 

attorneys’ fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. ' 2412. (ECF No. 

23.) The Commissioner filed an opposition to the application (ECF No. 27), to which Woodard 

filed a reply in further support of her application (ECF No. 28). On June 27, 2013, the 

Magistrate Judge issued his Report and Recommendation, recommending that the Court deny 

Woodard’s application for fees under the EAJA. This matter is now before the Court on 

Woodard’s objections to the Magistrate’s Report and Recommendation (ECF No. 30) and the 

Commissioner’s memorandum in opposition to Woodard’s objections (ECF No. 32). 

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 For the following reasons this Court OVERRULES Plaintiff’s objections (ECF No. 30),

ADOPTS the Magistrate Judge’s Report and Recommendation (ECF No. 29), and DENIES 

Plaintiff’s motion for an award of fees under the EAJA (ECF No. 23). 

I.

 Plaintiff filed this action to obtain judicial review of a Commissioner decision denying 

her application for disability insurance benefits and supplemental security income. On February 

14, 2013, this Court sustained Plaintiff’s objections to the Report and Recommendation (ECF 

No. 19) of the Magistrate Judge, who had recommended that the Court overrule plaintiff’s 

statement of errors and enter judgment in favor of the Commission. (ECF No. 21.) 

 This Court found “problematic” the ALJ’s reasoning process, which rejected a report by 

Dr. Franklin, a treating source of Plaintiff. (ECF No. 21 at PageID# 124.) The Court found that 

Dr. Franklin did not, as the first decision of the ALJ indicated, improperly cite to vocational 

factors in expressing an opinion about Plaintiff’s functional capacity. (Id. at PageID# 125.) The 

Court also concluded that the ALJ did not explain adequately why he accepted parts of Dr. 

Franklin’s opinions while rejecting others. (Id.) Nor did the ALJ explain why he did not 

mention limits imposed by Dr. Franklin on Plaintiff’s use of her left arm, the need for a sit-stand 

option, or the likelihood that Plaintiff would miss more than three days of work per month. (Id.

at PageID# 126.) 

 Following this Court’s decision declining to adopt the Magistrate Judge’s Report and 

Recommendation and remanding this case to the Commissioner, Plaintiff filed a motion for an 

award of attorneys’ fees and costs under EAJA. (ECF No. 23.) Specifically, Plaintiff’s motion 

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asked for an award of $6,418.05 in attorneys’ fees plus an additional $550.00 in expenses. (Id.) 

The Commissioner opposed the motion, arguing that its position before the ALJ was 

substantially justified. (ECF No. 27.) 

 The Magistrate Judge issued his Report and Recommendation on June 27, 2013, 

recommending that the Court deny Plaintiff’s request for an award of fees and costs under the 

EAJA. (ECF No. 29.) Plaintiff timely objected to the Magistrate Judge’s Report and 

Recommendation (ECF No. 30) and the Commissioner responded to Plaintiff’s objections (ECF 

No. 32). 

II. 

 The Equal Access to Justice Act (“EAJA”) empowers the Court to award attorneys’ fees 

and expenses to a prevailing party (other than the United States) in a civil proceeding for judicial 

review of an agency 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)(1)(A). 

 Where, as here, a prevailing party files a petition alleging that the United States’ position 

was not substantially justified, the United States has the burden of demonstrating the requisite 

justification. See Miller v. United States, 831 F. Supp. 1347, 1351 (M.D. Tenn. 1993). 

“Substantially justified” for purposes of the EAJA means that the government’s position is such 

that “a reasonable person could think it correct, that is, if it has a reasonable basis in law and 

fact.” Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988); see also Trident Marine Constr., Inc. 

v. District Eng’r, 766 F.2d 974, 980 (6th Cir. 1985). Notably, the “substantially justified” 

standard is not the same thing as a “substantial evidence” standard. An agency decision may still 

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be substantially justified (i.e., having a reasonable basis in law and fact) even though it is not 

supported by “substantial evidence.” Howard v. Barnhart, 376 F.3d 551, 554 (6th Cir. 2004); 

see also Jankovich v. Bowen, 868 F.2d 867, 870 (6th Cir. 1989). 

 Plaintiff’s first objection to the Report and Recommendation focuses upon the legal 

standard employed by the Magistrate Judge. Arguing that the Magistrate Judge employed “the 

wrong legal standard” (ECF No. 30 at PageID# 175), Plaintiff takes issue with the following 

passage in the Report and Recommendation: 

 The Court also found that portions of the second ALJ’s decision were 

erroneous because that decision simply ignored specific physical limitations 

contained in Dr. Franklin’s later opinion. That, too, is more than an error in 

articulation, as is the failure to offer substantial support for the reasons given for 

rejecting Dr. Smith’s conclusion that plaintiff could not sustain work activities for 

more than seven hours per day. 

 But were these conclusions by the ALJ, even if erroneous, not 

substantially justified, and was the Commissioner’s decision to defend them here 

lacking a reasonable basis in law and fact? The Court cannot reach that 

conclusion. The ALJ did offer a detailed explanation for his decision, and it did 

not involve a total misreading of the record or a total misapplication of the law. 

The Commissioner presented substantial arguments why the Court should have 

accepted the ALJ’s findings as being supported by the record. They included the 

fact that the ALJ made a residual functional capacity finding which was not 

dramatically different from Dr. Franklin’s opinion, the fact that plaintiff’s 

condition actually improved over time with surgery, and the fact that she had 

fairly extensive activities of daily living which seemed to conflict with Dr. 

Franklin’s more pessimistic view of her abilities. 

(Report and Recommendation, ECF No. 29 at PageID# 171 (emphasis added).) 

 Plaintiff targets the “total misreading of the record or a total misapplication of the law” 

language in the above quoted passage, accusing the Magistrate Judge of applying “the wrong 

legal standard.” (ECF No. 30 at PageID# 175.) Plaintiff argues that this language indicates that 

the Magistrate Judge imposed a “much higher burden” than the applicable “substantially 

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justified” standard. (Id.) 

 The Court disagrees with Plaintiff’s reading of the Magistrate Judge’s analysis. Viewed 

in context, the Magistrate Judge was not using the “total misreading of the record or a total 

misapplication of the law” language as a recitation of the legal standard. Indeed, the Magistrate 

Judge devoted an entire section of his Report and Recommendation to the legal standard 

involved here, explaining that the issue before the Court is whether the Commissioner’s position 

was “substantially justified,” meaning that it had a “reasonable basis in law and fact.” (ECF No. 

29 at PageID# 166-67.) When the Magistrate Judge noted the absence of a “total misreading of 

the record or a total misapplication of the law,” he was merely emphasizing the point that there 

was a genuine dispute and a reasonable basis in law and fact for the Commissioner’s position. 

(Id. at PageID# 171 (“[The Commissioner’s] arguments did not ultimately carry the day, but they 

were reasonably grounded in the record and were based on the Commissioner’s interpretation of 

how the applicable law applied to these facts.”).) 

 Plaintiff also objects to the Report and Recommendation because it purportedly “suggests 

that because the [residual functional capacity] found by the ALJ was not significantly different 

from the one offered by the treating physician, Defendant’s position was substantially justified.” 

(ECF No. 30 at PageID# 175.) But that is not what the Report and Recommendation suggests. 

The Magistrate Judge cited the fact that the ALJ made a residual functional capacity finding that 

“was not dramatically different from Dr. Franklin’s opinion” as one of many factors that the 

Commissioner argued to show that the ALJ’s findings were supported by the record. (ECF No. 

29 at PageID# 171.) Plaintiff argues that the difference between the ALJ’s finding and Dr. 

Franklin’s opinion is “significant as it is determinative as to the outcome of whether Ms. 

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Woodard is disabled.” (ECF No. 30 at PageID # 175.) But this does not change the fact that the 

ALJ’s position regarding residual functional capacity had support in the record and a reasonable 

basis in fact. 

 Finally, Plaintiff objects to the Report and Recommendation because she says the 

Magistrate Judge is attempting to “revisit” this Court’s determination that the ALJ erred by 

finding Plaintiff’s daily activities conflicted with Dr. Franklin’s evaluation of her capacity to 

perform limited work. In reciting the Commissioner’s “substantial arguments” given for 

accepting the ALJ’s findings, the Report and Recommendation noted “the fact that [Plaintiff] had 

fairly extensive activities of daily living which seemed to conflict with Dr. Franklin’s more 

pessimistic view of her abilities.” (ECF No. 29 at PageID# 171.) Plaintiff argues that the 

“seemed to” language indicates that the Magistrate Judge is inappropriately revisiting this 

Court’s determination described above and using that to bootstrap his finding that the 

Commissioner’s position was substantially justified. 

 The Court does not view the Magistrate Judge’s analysis as an attempt to “revisit” the 

Court’s previous findings. In its previous decision in this case, the Court noted that the ALJ 

erred in its description of Dr. Franklin’s opinion having assessed Plaintiff as “totally 

incapacitated.” (ECF No. 21 at PageID# 126.) The Court found that Dr. Franklin’s opinion, in 

fact, described Plaintiff as having a level of functioning above total incapacitation and, thus, the 

ALJ’s statement to the contrary lacked “substantial support in the record.” (Id. at PageID# 127.) 

But it should be noted that Dr. Franklin also made assessments of Plaintiff’s condition that were 

“inconsistent with the performance of competitive work activity.” (Id. at PageID# 123.) Thus, 

when the Magistrate Judge says that Plaintiff’s daily activities “seemed to conflict with Dr. 

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Franklin’s more pessimistic view of her abilities,” the statement is not at odds with this Court’s 

finding. The Court agrees with the Magistrate Judge that the Commissioner’s arguments did not 

carry the day, but were reasonably grounded in the record and had a basis in law. 

III. 

 For the reasons stated herein, this Court OVERRULES Petitioner’s objections (ECF No. 

30), ADOPTS the Magistrate Judge’s Report and Recommendation (ECF No. 29), and DENIES 

Plaintiff’s motion for an award of fees and expenses under the EAJA (ECF No. 23). 

IT IS SO ORDERED. 

 /s/ Gregory L. Frost 

GREGORY L. FROST 

UNITED STATES DISTRICT JUDGE 

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