UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

AMBER TRIPLETT, Case No. 1:17-cv-618

Plaintiff, Barrett, J.

Litkovitz, M.J.

vs.

COMMISSIONER OF REPORT AND

SOCIAL SECURITY, RECOMMENDATION

Defendant.

This matter is before the Court on plaintiff’s motion for an award of attorney’s fees and 

costs under the Equal Access to Justice Act (“EAJA”) (Doc. 18), the Commissioner’s responses 

in opposition (Docs. 20, 23), plaintiff’s reply memorandum (Doc. 24), and the Commissioner’s 

reply memorandum (Doc. 26). 

I. Procedural Background

In July 2009, plaintiff filed her application for disability insurance benefits (“DIB”) and 

supplemental security income benefits (“SSI”). (Doc. 2 at PAGEID 5). The application was 

denied initially and upon reconsideration. (Id. at PAGEID 5-6) Plaintiff requested and was 

granted a hearing before an administrative law judge (“ALJ”). (Id. at PAGEID 6). On 

September 2, 2010, the ALJ issued a decision granting plaintiff’s DIB application and finding 

plaintiff was disabled under the Social Security Act. (Id.).

In March 2016, plaintiff was notified by the Social Security Administration (“SSA”) that 

the Commissioner was going to redetermine plaintiff’s entitlement to benefits award and “a new 

[ALJ] would be disregarding certain allegedly fraudulent evidence presented and received into 

the record without objection in the prior decision.” (Id.; see also Doc. 18 at PAGEID 929; Doc. 

20 at PAGEID 965, 969). Plaintiff was one of thousands of claimants represented by Attorney 

Eric Conn, who used fraudulent means to obtain benefits for his clients. (Doc. 20 at PAGEID 

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968; see also Doc. 18 at PAGEID 929). The Sixth Circuit Court of Appeals summarized this

allegedly “fraudulent evidence” as follows: 

Throughout the 2000s and early 2010s, attorney Eric Conn obtained social security 

benefits for his clients by “submitting fraudulent reports to the Social Security 

Administration” and bribing an Administrative Law Judge. Hicks [v. Comm’r of 

Soc. Sec.], 909 F.3d [786,] 791-92 [6th Cir. 2018]. After the government 

discovered this fraud, the SSA decided to redetermine whether each of Conn’s 

clients (over 1,500 claimants) were actually eligible for disability benefits. Id. at 

794. The SSA held hearings for each of the claimants and allowed them to submit 

evidence that they were entitled to benefits. Id. at 795. However, the SSA 

categorically excluded medical reports created by the four doctors with whom Conn 

had conspired because it had “reason to believe” fraud was involved in the creation 

of the reports. Id. at 794-95 (citing 42 U.S.C. § 1383(e)(7)(A)(ii)). The claimants 

were not given the opportunity to challenge the factual finding that there was reason 

to believe that fraud was involved in the creation of the medical reports. Id. After 

individual hearings before administrative law judges, plaintiffs’ claims for 

disability benefits were denied. Id. at 795.

Griffith v. Comm’r of Soc. Sec., 987 F.3d 556, 561 (6th Cir. 2021).

Consistent with the above, the ALJ redetermined plaintiff’s benefit eligibility and 

disregarded evidence related to the alleged fraud. (Id.; see also Doc. 2 at PAGEID 6-7; Doc. 20 

at PAGEID 965, 969). The ALJ found there was insufficient evidence to support the earlier 

finding of disability and therefore terminated plaintiff’s benefits. (Doc. 2 at PAGEID 7). This 

decision became the final decision of the Commissioner when the Appeals Council denied 

review on August 1, 2017. (Id.). Plaintiff thereafter initiated the instant lawsuit alleging that the 

Commissioner’s redetermination of plaintiff’s benefits violated provisions of the Social Security 

Act and accompanying regulations, her right to due process, and the rights accorded by the 

Administrative Procedure Act (“APA”) (Counts I, II, and III). Plaintiff further argued that the 

decision of the ALJ issued on April 27, 2017 was unsupported by substantial evidence (Count 

IV). (Id. at PAGEID 7-8). 

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On January 16, 2018, the Court stayed the proceedings pending resolution of the Sixth 

Circuit’s decision in Hicks, 909 F.3d 786, “as the issues presented in [plaintiff’s] case mirror 

those presented in Hicks.” (Doc. 10; see also Doc. 18 at PAGEID 929). On November 21, 2018, 

the Sixth Circuit “concluded [in Hicks] that the government’s process for redetermining 

plaintiffs’ eligibility for social security benefits was constitutionally and statutorily deficient.” 

Griffith, 987 F.3d at 561 (citing Hicks, 909 F.3d at 791-92). Following the Sixth Circuit’s 

decision in Hicks, the Commissioner filed an unopposed motion for remand pursuant to sentence 

four of 42 U.S.C. § 405(g) (Doc. 15), which was granted by the Court on August 30, 2019 (Doc. 

16). 

On October 25, 2019, plaintiff filed a motion for an award of attorney’s fees and costs 

under the EAJA. (Doc. 18). On January 24, 2020, the Commissioner filed a motion to stay the 

proceedings pending the Sixth Circuit’s decision in Griffith, 987 F.3d 556. (Doc. 21). Griffith

was a consolidated appeal from fifty-seven plaintiffs, including the plaintiffs from Hicks, 

resulting from the unanimous denials of their motions for attorney’s fees under the EAJA. 

Griffith, 987 F.3d 556. The Court granted the Commissioner’s motion to stay and held this 

matter in abeyance pending resolution by the Sixth Circuit of the EAJA petitions in Griffith. 

(Doc. 22). On February 9, 2021, the Commissioner filed a motion to lift the stay (Doc. 23), 

which was granted by the Court on April 2, 2021 (Doc. 25). The Court ordered any

supplemental briefing by the parties be submitted within twenty days of the date of the Order. 

(Id.). 

II. The parties’ arguments

Plaintiff argues that the Court should grant her motion for attorney’s fees under the EAJA 

because plaintiff was the prevailing party, the government’s position was not substantially 

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justified, and the requested fees are reasonable. (Doc. 18). Plaintiff contends that the 

government’s position was not substantially justified because the Sixth Circuit in Hicks found 

that the government’s process for redetermining benefits was unconstitutional as it violated 

procedural due process. (Doc. 18 at PAGEID 932-33). Plaintiff also points to the government’s 

motion to remand following the Hicks decision as further evidence that the government’s 

position was not substantially justified. (Id. at PAGEID 935). 

The Commissioner opposes plaintiff’s EAJA fee motion, urging the Court to “follow the 

Sixth Circuit’s reasoning in the published decision of Griffith and deny Plaintiff’s request for 

EAJA fees in this case.” (Doc. 23 at PAGEID 985). Specifically, the Commissioner contends 

that the Court should deny plaintiff’s motion because “[t]he Sixth Circuit [in Griffith] agreed 

with the unanimous district courts that denied fees because the government’s position in the 

[Eric] Conn cases was substantially justified.” (Id. at PAGEID 984).

Plaintiff argues that the Court should not follow Griffith and instead use its “wide zone of 

discretion that trial judges are vested with when ruling on fee petitions.” (Doc. 24 at PAGEID 

988). 

III. Law governing attorney fees under the EAJA

The EAJA provides for an award of attorney fees to a party who prevails in a civil action 

against the United States “when the position taken by the Government is not substantially 

justified and no special circumstances exist warranting a denial of fees.” Bryant v. Comm’r of 

Soc. Sec., 578 F.3d 443, 445 (6th Cir. 2009) (citing 28 U.S.C. § 2412(d)(1)(A)). The EAJA 

provides:

[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 

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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)(1)(A). For a position to be “substantially justified,” the United States must 

show that its position was “‘justified in substance or in the main’ – that is justified to a degree 

that could satisfy a reasonable person. In other words, a position is substantially justified if ‘a 

reasonable person could think it correct’ and ‘it has a reasonable basis in law and fact.’” Griffith, 

987 F.3d at 563 (internal citation omitted) (quoting Pierce v. Underwood, 487 U.S. 552, 565-66 

(1988)). It is the government’s burden under the EAJA to prove that its position was 

substantially justified. See Scarborough v. Principi, 541 U.S. 401, 414-15 (2004). The “position 

of the United States” means the position taken by the government in the litigation as well as in 

the underlying agency action. 28 U.S.C. § 2412(d)(2)(D). The focus is “on the government’s 

position ‘as a whole.’” Griffith, 987 F.3d at 564 (quoting Amezola-Garcia v. Lynch, 835 F.3d 

553, 555 (6th Cir. 2016)). “[T]he government . . . must justify both positions [i.e. the 

administrative position and the litigation position] to avoid liability for EAJA fees.” Lewis v. 

Comm’r of Soc. Sec., No. 2:12-cv-490, 2014 WL 4794415, at *3 (S.D. Ohio Sept. 25, 2014) 

(citations omitted). A position “may be ‘justified even though it is not correct.’” Griffith, 987 

F.3d at 563 (quoting Pierce, 487 U.S. at 566 n.2). 

“When considering whether the government’s position is substantially justified, [the 

Court] focus[es] on the merits of that position. While ‘objective indicia’ of reasonableness—

such as a dissenting opinion, the views of other courts, ‘a string of losses’, or a ‘string of 

successes’—may be relevant, it is ‘the actual merits of the Government’s litigating position’ that 

matter most.” Id. (quoting United States ex rel. Wall v. Circle C Constr., LLC, 868 F.3d 466, 

471 (6th Cir. 2017)). Further, “[v]oluntary remand does not absolve the Commissioner of the 

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burden of demonstrating substantial justification for her position at the administrative level in 

order to avoid an EAJA fee award[.]” Fields v. Comm’r of Soc. Sec., No. 16-14189, 2019 WL 

1253472, at *4 (E.D. Mich. Jan. 4, 2019), report and recommendation adopted, 2019 WL 

643188 (E.D. Mich. Feb. 15, 2019) (citing Lewis, 2014 WL 4794415; Li v. Keisler, 505 F.3d 

913, 919-20 (9th Cir. 2007)).

IV. Analysis

There is no dispute that plaintiff was the prevailing party1, and the Commissioner did not 

argue in opposition that the requested fees were unreasonable. The core issue presented by

plaintiff’s motion, therefore, is whether the Commissioner’s position was substantially justified. 

The Sixth’s Circuit’s recent decision in Griffith is instructive in this regard.

To understand Griffith, however, the Court must first look at Hicks. Hicks was a 

consolidated appeal initiated by eleven plaintiffs, all former clients of Eric Conn, who alleged 

that the SSA’s procedures and actions in redetermining their benefit eligibility violated the Due 

Process Clause, the Administrative Procedure Act, and the Social Security Act. Hicks, 909 F.3d 

786. The Sixth Circuit explained: 

During the redetermination process, the SSA disregarded all medical evidence 

submitted by the four doctors participating in Conn’s scheme on the ground that 

such evidence was tainted by fraud. Plaintiffs had no opportunity to rebut the 

agency’s assertion of fraud as to this medical evidence. Ultimately, all plaintiffs 

were deemed ineligible for SSDI and SSI benefits as of the date of their original 

applications, and their benefits were terminated. After exhausting all 

administrative remedies, plaintiffs brought suit in federal district court.

1 Plaintiff became the prevailing party when she obtained an order vacating the ALJ’s decision and remanding the 

matter for further proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g). (Doc. 16). See Shalala v. Schaefer, 

509 U.S. 292, 300-02 (1993) (Social Security claimant who obtains a Sentence Four judgment reversing denial of 

benefits and requiring further proceedings is “prevailing party” for purposes of the EAJA). See also Turner v. 

Comm’r of Soc. Sec., 680 F.3d 721, 723 (6th Cir. 2012).

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Id. at 792. The Court of Appeals in Hicks concluded that the SSA’s process for 

redetermining plaintiffs’ eligibility for social security benefits was constitutionally and 

statutorily deficient because “[t]he Due Process Clause of the Constitution and the 

Administrative Procedure Act required the SSA to allow plaintiffs an opportunity to show 

why the medical reports uniformly and entirely disregarded in their redetermination 

proceedings were not, in fact, tainted by fraud.” Id. at 813.

The Court of Appeals remanded the eleven cases that were consolidated on appeal 

to three district courts for further proceedings consistent with Hicks. Following remand, 

“those plaintiffs, as well as forty-six other plaintiffs whose cases had been stayed pending 

a decision in Hicks, filed motions for attorney’s fees under the [EAJA]. The district 

courts unanimously denied fees because they concluded that the government’s position in 

the Hicks litigation was ‘substantially justified.’” Griffith, 987 F.3d at 561. All fiftyseven plaintiffs then appealed to the Sixth Circuit arguing that the district courts erred in 

denying their motions for attorney’s fees under the EAJA. The Sixth Circuit, however,

affirmed the district courts’ denial of plaintiffs’ motions for attorney’s fees under the 

EAJA and concluded that the district courts did not abuse their discretion by finding that 

the SSA’s decision not to let claimants challenge its fraud finding was substantially 

justified. Id. at 556. The Court of Appeals found that the government’s position in not

allowing plaintiffs to challenge the factual finding that fraud had been involved in the 

creation of the medical reports was “reasonable.” Id. at 565-68. Further, the Court found 

that “[t]he government’s argument that it had complied with the APA’s formal 

adjudication requirements, or, in the alternative, that it did not have to comply with those 

requirements, was substantially justified.” Id. at 568. The Sixth Circuit concluded that in 

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“[l]ooking at the [SSA’s] arguments holistically, we hold that the district courts did not 

abuse their discretion in concluding that the government’s position was substantially 

justified.” Id. at 571. The Sixth Circuit therefore “affirm[ed] the district courts’ denial of 

plaintiffs’ motions for attorney’s fees under the EAJA.” Id. at 574. 

Here, plaintiff acknowledges that the issues presented in her case “mirror those in 

Hicks.” (Docs. 9, 10; see also Doc. 18 at PAGEID 929). As such, Griffith’s resolution of 

whether the Commissioner’s position was substantially justified is dispositive. Griffith

provides a detailed evaluation of the merits of the Commissioner’s position, including the 

arguments relating to due process and the APA, in its finding that the government’s 

position was substantially justified. Plaintiff does not appear to analyze the merits of the 

Griffith decision or provide any reasons why it was wrongly decided. 

Rather, plaintiff asks the Court to use its discretion to award fees. (Doc. 24 at 

PAGEID 988, 990-91). This argument, however, has been rejected: “Although Plaintiff 

correctly points out that Griffith engaged in a deferential review of whether the district 

court judges had abused their discretion in denying EAJA fees, he makes no other 

attempt to distinguish the well-reasoned decision set forth by the court.” Tyler J. v. Saul, 

No. 17 CV 50090, 2021 WL 825651, at *5 (N.D. Ill. Mar. 4, 2021). Although Tyler J. is 

not binding on this Court, it is nevertheless persuasive.

Moreover, plaintiff presents the Court with numerous out-of-circuit cases, decided 

before Griffith, in support of her motion. (Doc. 24 at PAGEID 990-91). However, it is 

well-established that “published Sixth Circuit opinions . . . are controlling binding

precedent for future Sixth Circuit panels and for all district courts in the circuit.” Chinn 

v. Jenkins, No. 3:02-cv-512, 2018 WL 488159, at *4 (S.D. Ohio Jan. 19, 2018). See also 

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In re Miedzianowski, 735 F.3d 383, 384 (6th Cir. 2013) (“Where our circuit has answered 

the question, the district court is bound by our published authority.”); Darrah v. City of 

Oak Park, 255 F.3d 301, 309 (6th Cir. 2001) (citations omitted) (“The prior decision [of a 

Sixth Circuit panel] remains controlling authority unless an inconsistent decision of the 

United States Supreme Court requires modification of the decision or this Court sitting en 

banc overrules the prior decision.”); Hardwick v. 3M Co., No. 2:18-cv-1185, 2021 WL 

612472, at *6 (S.D. Ohio Feb. 17, 2021) (“When there is binding authority, as is the case 

here, this Court must follow it.”). 

The Griffith case discussed and rejected each of the arguments made by plaintiff 

in her motion for attorney’s fees. Plaintiff has presented no substantive evaluation or 

discussion of Griffith, and has likewise provided no reason, other than the Sixth Circuit’s 

“limited appellate role” (Doc. 24 at PAGEID 988), as a reason not to follow Griffith. The 

Sixth Circuit “has answered the question” of whether the Commissioner’s decision to 

preclude claimants from challenging the fraud finding in their redetermination 

proceedings is substantially justified for purposes of attorney fees under the EAJA. See 

In re Miedzianowski, 735 F.3d at 384. Accordingly, consistent with the Sixth’s Circuit’s 

decision in Griffith, the Court recommends that plaintiff’s motion for attorney fees be 

DENIED. 

IT IS THEREFORE RECOMMENDED THAT: 

1. Plaintiff’s motion for attorney’s fees (Doc. 18) be DENIED.

Date: _________________________ 

 Karen L. Litkovitz 

 Chief United States Magistrate Judge

8/10/2021

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

AMBER TRIPLETT, Case No. 1:17-cv-618

Plaintiff, Barrett, J.

Litkovitz, M.J.

vs.

COMMISSIONER OF

SOCIAL SECURITY,

Defendant.

NOTICE 

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to this Report & Recommendation within FOURTEEN (14) DAYS after being 

served with a copy thereof. This period may be extended further by the Court on timely motion 

by either side for an extension of time. Such objections shall specify the portions of the Report 

objected to and shall be accompanied by a memorandum of law in support of the objections. If 

the Report and Recommendation is based in whole or in part upon matters occurring on the 

record at an oral hearing, the objecting party shall promptly arrange for the transcription of the 

record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems 

sufficient, unless the assigned District Judge otherwise directs. A party may respond to another 

party's objections WITHIN 14 DAYS after being served with a copy thereof. Failure to make 

objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 

474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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