IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Steven A. Acton, :

Plaintiff, :

v. : Case No. 2:12-cv-1049

 : JUDGE ALGENON L. MARBLEY

Commissioner of Social Security, Magistrate Judge Kemp

Defendant. :

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Steven A. Acton, filed this action seeking review

of a decision of the Commissioner of Social Security denying his

application for disability insurance benefits. On July 16, 2013,

a Report and Recommendation was filed which recommended

overruling Plaintiff’s statement of errors and entering judgment

in favor of the Commissioner.

Plaintiff filed objections to that recommendation. In an

Opinion and Order filed on March 24, 2014, the District Judge

sustained the objections in part and remanded the case to the

Commissioner for further proceedings pursuant to 42 U.S.C.

§405(g), sentence four. Plaintiff then timely filed a motion for

attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C.

§2412. Responsive and reply memoranda have been filed. For the

following reasons, it will be recommended that the motion be

denied.

II. The EAJA

The Equal Access to Justice Act, 28 U.S.C. §2412, provides,

in pertinent part, that the Court shall award to a prevailing

party other than the United States attorneys' fees and expenses

"unless the court finds that the position of the United States

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was substantially justified or that special circumstances make an

award unjust." 

 The party seeking an award of such fees and expenses is

required to submit a fee application to the court within 30 days

of the date that the judgment became final and non-appealable. 

The application must demonstrate that the party is a prevailing

party and is eligible to receive a fee award. It must also

document the amount sought, including an itemized statement from

the attorney or attorneys involved, and must allege that the

position of the United States was not substantially justified. 

The court is then required to determine, on the basis of the

record, whether the position of the United States was

substantially justified. Attorneys' fees are limited to the rate

of $125.00 per hour "unless the court determines that an increase

in the cost of living or a special factor, such as the limited

availability of qualified attorneys for the proceedings involved,

justifies a higher fee." 

 Once a petition has been filed alleging that the position of

the United States was not substantially justified, the United

States has the burden of demonstrating such justification. See

Miller v. United States, 831 F. Supp. 1347, 1351 (M.D. Tenn.

1993) ("The burden lies with the government to demonstrate that

its position was substantially justified ...."); Weber v.

Weinberger, 651 F.Supp. 1379, 1388 (E.D. Mich. 1987) ("with

respect to an application for attorney's fees the Government has

the burden of showing that its position was substantially

justified."); see also Howard v. Heckler, 581 F. Supp. 1231, 1233

(S.D. Ohio 1984). The question of whether the United States’

position is substantially justified is determined based upon the

standards set forth in Pierce v. Underwood, 487 U.S. 552 (1988). 

In Pierce, the Court concluded that the phrase "substantially

justified" as used in the EAJA means justified "to a degree that

could satisfy a reasonable person." Pierce, supra, at 565. As

the Court noted, that test "is no different from the 'reasonable

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basis both in law and fact' formulation adopted by the Ninth

Circuit and the vast majority of other Courts of Appeals that

have addressed this issue." Id., citing, inter alia, Trident

Marine Construction, Inc. v. District Engineer, 766 F.2d 974 (6th

Cir. 1985). An agency decision that is not supported by

substantial evidence may still be one that has a reasonable basis

in law and fact. Jankovich v. Bowen, 868 F.2d 867 (6th Cir.

1989). Consequently, this Court is required to apply the

"reasonable basis in law and fact" test set forth in Trident

Marine Construction to this application for attorneys’ fees.

III. The Favorable Decision

Plaintiff raised three issues in his statement of errors. 

Two of them, relating to the ALJ’s evaluation of the opinion of

treating source Dr. Maynard and of Plaintiff’s credibility, were

overruled. The third raised questions about how the ALJ dealt

with the opinions of Dr. Masone, another treating source. The

Court sustained that claim of error.

In its Opinion, the Court, citing to Wilson v. Comm’r of

Social Security, 378 F.3d 541 (6th Cir. 2004), held that the

ALJ’s discussion of Dr. Masone’s opinion - to which the ALJ gave

some weight with respect to Plaintiff’s ability to stand and

walk, grasp, perform fine manipulation, and to use his feet for

repetitive movements, and which also contained certain postural

limitations which the ALJ credited - was insufficient because it

did not explain exactly how the ALJ discounted the limitations

Dr. Masone placed on Plaintiff’s lifting capacity. The ALJ said

that this part of his decision was based on the vocational

evidence of record, but the Court found that it could not tell

“exactly how the ALJ applied [the] facts to the various [20

C.F.R. §404.] 1527(d) factors.” Doc. 20, at 7. Rather, the

Court concluded that “[t]he least an ALJ can do to protect a

claimant’s interests is to explain how it applies the facts of a

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denied claim to those enumerated factors when it has chosen not

to afford a treating source’s opinion controlling weight.” Id.

at 8. The case was therefore remanded for a more complete

explanation of why the ALJ did not give Dr. Masone’s opinion

controlling weight.

 IV. The Parties’ Arguments

A. The Commissioner’s Position

The Commissioner, in opposing the motion for fees, notes

that the only basis for remand was the ALJ’s failure to

articulate clearly the reasons for rejecting the lifting

limitations imposed by Dr. Masone. This Court found, as the

Commissioner notes, that “the record and ALJ decision, when

viewed in whole, both contain substantial evidence supporting the

ALJ’s ultimate decision.” Doc. 20, at 6. The Commissioner

argues that under DeLong v. Comm’r of Social Security, 748 F.3d

723 (6th Cir. 2014), these facts support a finding that the

Commissioner’s litigation position was substantially justified. 

Also, based on cases decided by the Seventh Circuit Court of

Appeals, the Commissioner contends that the Court’s overruling of

Plaintiff’s other claims of error is a factor to be considered,

and that the Court should not focus just on the one statement of

error which was upheld.

B. Plaintiff’s Position

Plaintiff begins his argument by pointing out that both the

treating physician rule and the requirement that an ALJ

articulate the reasons for affording less than controlling weight

to the opinions of treating physicians are well-established by

regulation, rulings, and case law. The failure to follow such

basic rules of decision is, according to Plaintiff, strong

evidence that the Commissioner’s litigation position was not

substantially justified. In his reply memorandum, Plaintiff

essentially repeats this argument, and also asserts that the fact

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that the Commissioner prevailed on two of the three issues raised

in Plaintiff’s statement of errors cannot be used as evidence of

the reasonableness of the Commissioner’s decision to defend the

ALJ’s violation of the treating physician rule as to Dr. Masone. 

He also cites to Howard v. Barnhart, 376 F.3d 551 (6th Cir.

2004), where the Court of Appeals, in awarding attorneys’ fees to

a successful social security claimant under the EAJA in a case

where both a Magistrate Judge and a District Judge had upheld the

denial of benefits, noted that “[w]hile a string of losses or

successes may be indicative of whether a position is

substantially justified, ‘the fact that one other court agreed or

disagreed with the Government does not establish whether its

position was substantially justified.’” Id. at 554, quoting

Pierce, supra, at 569. 

V. Analysis

The keystone to any decision about entitlement to fees under

the EAJA is the substantiality of the arguments which were made

in favor of the Commissioner’s litigation position. Clearly, the

Commissioner did not ultimately prevail on the argument that the

ALJ provided a sufficiently clear rationale for concluding that

Dr. Masone’s lifting restrictions could not be accepted in their

entirety. But did the Commissioner act reasonably in advancing

that argument?

DeLong has much to say on this issue. There, the Court of

Appeals described its decision this way:

[W]e hold that an ALJ's failure to provide an adequate

explanation for his findings does not establish that a

denial of benefits lacked substantial justification. A

fully justified position may be poorly explained, and

remand may be the most appropriate vehicle for

elucidating that position. Thus, although remand on

any ground theoretically may support an award of fees

under the EAJA, such an award is not appropriate when

nothing about the specific remand at issue implies a

lack of substantial justification.

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DeLong, 748 F.3d at 727. This language is especially compelling

where, as here, the District Judge specifically found that

substantial evidence appeared to support the denial of benefits. 

It is even more compelling given the fact that the Commissioner

also had a reasonable basis for arguing that the ALJ’s decision,

as a whole, provided the necessary explanation for how the ALJ

treated Dr. Masone’s opinion - an argument that was accepted by

the Magistrate Judge. Although, as Howard cautions, the

acceptance of such an argument does not necessarily prove its

reasonable nature, it is evidence which the Court may consider in

its analysis.

Plaintiff does not discuss the DeLong case in his reply. It

is worth noting that other district courts have applied its

holding to deny EAJA fee applications in cases where the remand

order was procedurally-based and did not imply a lack of

substantial justification for the denial of benefits. See, e.g.,

Green v. Colvin, 2014 WL 4961169, *3 (W.D. Ky. Oct. 3,

2014)(denying EAJA fees in a case where “the remand ... [could]

fairly be characterized as procedural, premised upon lack of

adequate explanation, with no implied lack of substantial

justification”). That is the situation here. Without holding

that a social security plaintiff can never obtain an award of

fees under the EAJA when remand is ordered based on a violation

of the “good reasons” rule found in §404.1527(c), the Court finds

that in this particular case, DeLong either requires or

persuasively supports denial of the Plaintiff’s application.

VI. Conclusion

For these reasons, it is recommended that the Plaintiff’s

motion for attorneys’ fees under the Equal Access to Justice Act

(Doc. 22) be denied.

VII. Procedure on Objections

If any party objects to this Report and Recommendation,

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that party may, within fourteen (14) days of the date of this

Report, file and serve on all parties written objections to those

specific proposed findings or recommendations to which objection

is made, together with supporting authority for the objection(s). 

A judge of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to

object to the Report and Recommendation will result in a

waiver of the right to have the district judge review the

Report and Recommendation de novo, and also operates as a

waiver of the right to appeal the decision of the District

Court adopting the Report and Recommendation. See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d

947 (6th Cir. 1981).

/s/ Terence P. Kemp 

 United States Magistrate Judge

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