UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BRENDA J. BORUFF, o/b/o

DILLON JAY BORUFF,

 Plaintiff, CIVIL ACTION NO. 08-14585 

v. DISTRICT JUDGE NANCY G. EDMUNDS

 MAGISTRATE JUDGE DONALD A. SCHEER 

COMMISSIONER OF 

SOCIAL SECURITY, 

 Defendant. 

_____________________________/

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

RECOMMENDATION: Plaintiff's Application for Attorney Fees under the Equal Access to

Justice Act (EAJA) should be DENIED, because the position of the Commissioner was

substantially justified.

REPORT:

A. Procedural History

Plaintiff is a minor male child who is now eleven years old. His mother, Brenda

Boruff, filed an application for Social Security Supplemental Security Income (SSI)

childhood disability benefits on his behalf on December 16, 2005, alleging incapacity due

to attention deficit hyperactivity disorder (ADHD). Benefits were denied, initially and upon

reconsideration, by the Social Security Administration. A requested de novo hearing was

held on December 13, 2007, before Administrative Law Judge Roy Rouhlac. Claimant and

his mother appeared and testified. In a decision dated January 23, 2008, Judge Rouhlac

determined that the claimant was not entitled to childhood SSI benefits because his mental

deficiencies were not severe enough to meet or medically equal any of those found in the

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Listing of Impairments. The Appeals Council declined to review that decision, and Plaintiff

commenced the instant action for judicial review of the denial of benefits.

In an Opinion and Order, dated August 17, 2009, this court remanded the matter to

the Commissioner for further administrative action. The order stated in pertinent part:

In the present case, the factual issues have not been resolved

and the record does not establish that Plaintiff is entitled to

benefits. And although the ALJ did not provide substantial

evidence to support his conclusions that Plaintiff has less than

marked impairment in the ‘acquiring and using information’

domain, or that a GAF score of 50 is inconsistent with the

record taken as a whole, there is not compelling evidence that

Plaintiff is entitled to benefits. Therefore, for the above

mentioned reasons, pursuant to sentence four of 42 U.S.C.

§405(g), the ALJ’s decision is REVERSED and REMANDED

so that the Commissioner further considers whether there is

substantial evidence in the record as a whole to support the

finding that (1) Plaintiff has less than marked impairment in the

‘acquiring and using information’ domain, and that (2) a GAF

score of 50 is inconsistent with the record as a whole.

Order of Remand at p. 19 (Docket #18).

On November 16, 2009, Plaintiff filed an Application for Attorney Fees under the Equal

Access to Justice Act (EAJA). The defendant filed his response to the petition on December

30, 2009. The fee application was referred to the undersigned magistrate judge, on

January 6, 2010, for a report and recommendation. Plaintiff filed a timely reply to the

Commissioner’s brief on January 6, 2010.

B. Analysis

The EAJA provides that the Court shall award attorney fees and expenses to a

prevailing party (other than the United States) in any civil action brought against the United

States, unless the position of the government was substantially justified. 28 U.S.C.

§2412(d)(1)(A). The Act also provides that the attorney fees awarded shall not be at a rate

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more than $125.00 per hour, unless the Court determines that an increase in the cost of

living, or some other special factor, justifies a higher fee. 28 U.S.C. §2412(1)(D)(2)(A). 

Plaintiff seeks attorney fees at the rate of $166.40 per hour plus reimbursement of

the filing fee. The attorney submitted a detailed breakdown of his work on behalf of Plaintiff

showing that he and two other attorneys had worked a total of 43.25 hours preparing her

disability case between September 17, 2008, and June 10, 2009. The Commissioner of

Social Security maintains that his opposition to plaintiff’s claim for judicial review of the

denial of benefits was substantially justified, and that the request for attorney fees should

be denied in its entirety. 

In remanding Plaintiff’s case to the Commissioner for further administrative

proceedings, the Court explicitly held that the agency decision to deny benefits was not

supported by substantial evidence. The Defendant correctly observes, however, that the

Commissioner’s position may be found to have been substantially justified even though

substantial evidence did not support the decision. Jankovich v. Bowen, 868 F.2d 867, 869-

70 (6th Cir. 1989). Whether the Commissioner’s position was substantially justified within

the meaning of the EAJA is basically a question of reasonableness. Pierce v. Underwood,

108 S.Ct. 2541, 2550 (1998). In this case, the Commissioner asserts that his position was

substantially justified because it was reasonable for the ALJ to conclude that the claimant’s

ADHD did not meet Listing 112.11, and that the child’s impairments did not functionally

equal a listing.

I am persuaded that the Commissioner was substantially justified in deciding this

case and defending it in litigation. Typically, how much evidence to gather is a judgment

on which courts defer to the SSA. Kendrick v. Shalala, 998 F.2d 455, 458 (7th Cir.1993)

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(how much evidence to gather is a subject on which we generally respect the Secretary's

reasoned judgment). In this case, the ALJ probed into all of the relevant facts. 

A child will be considered disabled if he has a “medically determinable physical or

mental impairment, which results in marked and severe functional limitations.” 42 U.S.C.

§ 1382(a)(3)(C)(I). Typically, a disabled child has an impairment or combination of

impairments that meets, medically equals, or functionally equals an impairment listed in 

20 C.F.R. Part 404, Subpart P. Appendix 1. 20 C.F.R. § 416.924(a) (2009). 

To determine whether a child’s impairment(s) functionally equal the listings, SSA will

assess the functional limitations caused by the child’s impairment(s). 20 C.F.R. §

416.926a(a)(2003). SSA will consider how a child functions in six domains:

1. Acquiring and using information;

2. Attending and completing tasks;

3. Interacting and relating with others;

4. Moving about and manipulating objects;

5. Caring for yourself; and

6. Heath and physical-being.

20 C.F.R. § 416.926a(b)(1).

If a child’s impairments result in “marked” limitations in two domains, or an “extreme”

limitation in one domain,1

 the impairment functionally equals the listing and the child will be

found disabled. 20 C.F.R. 416.926a(d).

 1A marked limitation is one that “interferes seriously with [a child’s] ability to

independently initiate, sustain or complete activities.” 20 C.F.R. § 416.926a(e)(2). An

extreme limitation is one that “interferes very seriously with [a child’s] ability to

independently sustain or complete activities.” 20 C.F.R. § 416.926a(e)(3).

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In the instant case, the ALJ determined that the child was indeed impaired as a

result of attention deficit hyperactivity and learning and oppositional defiant disorders, but

these conditions were not severe enough to meet or medically equal any of those found in

the Listing of Impairments. Moreover, the Law Judge found that claimant’s impairments did

not “functionally equal” the Listing because the medical problems stemming from the

disorders had not resulted in any disabling functional limitations affecting his motor,

communicative, social or personal development capacities.

In it’s Order of Remand, the Court held that “there was not compelling evidence that

Plaintiff is entitled to benefits.” Order at p. 19. The Court remanded the case, however, to

permit the ALJ to assess a report from a second grade school teacher in determining

Plaintiff’s limitation in the domain of acquiring and using information. Order at pp. 14-16. 

The Court found that the ALJ did not necessarily err in finding less than marked

impairments in the domain of acquiring and using information. Order at p. 16. The Court

simply remanded the case to allow the ALJ to decide whether a total assessment of the

evidence would alter his judgment, and for him to determine whether a GAF score of 50

(provided by a treating psychiatrist) was consistent with the record. Order at pp. 16-19. 

The Law Judge reviewed considerable evidence, including statements from

Plaintiff’s mother, upon which to assess credibility and render a decision in this case. The

ALJ here carefully considered the objective medical evidence, treatment sources and

activities of daily living when evaluating the claimant’s subjective allegations. 

Defendant was not lacking substantial justification in deciding this case against

Plaintiff on the record before the agency. The government's position respecting the child’s

disability claim, although rejected by this Court, had a "reasonable basis in law and fact,"

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and it therefore was "substantially justified" within the meaning of the Equal Access to

Justice Act. For all the above reasons, I recommend that Plaintiff’s Attorney Fee Request

Under the EAJA be denied.

NOTICE TO PARTIES REGARDING OBJECTIONS:

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

Recommendation, but are required to act within fourteen (14) days of service of a copy

hereof as provided for in 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes

a waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir.

1981), Thomas v. Arn, 474 U.S. 140 (1985), Howard v. Secretary of HHS, 932 F.2d 505

(6th Cir. 1991). Filing of objections which 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. Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th

Cir. 1987), Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 1991). Pursuant to Rule

72.1 (d)(2) of the Local Rules of the United States District Court for the Eastern District of

Michigan, a copy of any objections is to be served upon this Magistrate Judge.

Within fourteen (14) days of service of any objecting party's timely filed objections,

the opposing party may file a response. The response shall address specifically, and in the

same order raised, each issue contained within the objections.

 s/Donald A. Scheer

DONALD A. SCHEER

 UNITED STATES MAGISTRATE JUDGE

DATED: January 13, 2010

______________________________________________________________________

CERTIFICATE OF SERVICE

I hereby certify on January 13, 2010 that I electronically filed the foregoing paper with the Clerk of the

Court sending notification of such filing to all counsel registered electronically. I hereby certify that a copy of

this paper was mailed to the following non-registered ECF participants on January 13, 2010: None.

s/Michael E. Lang 

Deputy Clerk to 

Magistrate Judge Donald A. Scheer

(313) 234-5217

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