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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

SUSAN GILBERT, 

 Plaintiff, 

 vs Case No: 09-13529 

 Honorable Victoria A. Roberts 

COMMISSION OF SOCIAL SECURITY, 

 Defendant. 

______________________________________/ 

ORDER REJECTING REPORT AND RECOMMENDATION 

AND GRANTING ATTORNEY FEES 

BACKGROUND AND PROCEDURAL HISTORY 

 Susan Gilbert (“Plaintiff”) appealed a final decision of the Commissioner of Social 

Security (“Commissioner”) denying her application for Social Security Benefits. (Doc. # 

1). The Court rejected Magistrate Judge Steven R. Whalen’s Report and 

Recommendation and remanded the case to an Administrative Law Judge (“ALJ”) for 

further proceedings. (Doc. # 21). The Court concluded that “the ALJ failed to explain 

how he considered and weighed the evidence in the record” to conclude that Plaintiff’s 

“impairment was not medically equivalent to the 1.04A listing.” (Id. at 10). The Court 

further found that the ALJ did not include relevant limitations, which the Vocational 

Expert (VE) described as “work preclusive,” in his Residual Functional Capacity finding. 

(Id. at 13). The Court concluded that “the ALJ’s opinion on the supportability and 

consistency of [Drs. Shah, Visser, and Gilbert’s] medical opinions is not supported by 

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substantial evidence, and [the ALJ’s] decision does not provide ‘good reasons’ for 

rejecting them in light of [Plaintiff’s] fibromyalgia diagnosis.” (Id. at 16, 18). Lastly, the 

Court found that the ALJ failed to assess the impact of Plaintiff’s “obesity, when 

combined with the debilitating symptoms of her fibromyalgia, [on her] ability to engage 

in substantial gainful activity.” (Id. at 22). 

 On June 15, 2011, Plaintiff filed her motion for attorney fees and other expenses 

under the Equal Access to Justice Act (“EAJA”). (Doc. # 23). Defendant responded 

that Plaintiff was not entitled to fees because the Government’s position was 

substantially justified. (Doc. # 24). On January 24, 2011, the Magistrate Judge issued 

a Report and Recommendation in which he concluded that Defendant’s position was 

substantially justified and as a result, Plaintiff is not entitled to attorney fees. (Doc. # 

27). Plaintiff filed timely objections. Defendant responded to the objections. (Doc. #29) 

 For reasons stated below, the Court rejects the Report and Recommendation 

and GRANTS Plaintiff’s motion for attorney fees in the amount of $4,281. 

I. STANDARD OF REVIEW 

 Under Fed. R. Civ. P. 54(d)(2)(D), a court may refer motions for attorney fees to 

a magistrate judge as a dispositive pretrial matter. See Callier v. Gray, 167 F.3d 977, 

982 (6th Cir. 1999). Review of a magistrate judge’s recommendation on a dispositive 

motion is de novo. 28. U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(B)(3). “The district judge 

may accept, reject, or modify the recommended disposition; receive further evidence; or 

return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(B)(3). 

II. ANALYSIS 

 EAJA covers a Social Security case brought under 42 U.S.C. § 405(g):

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(d)(1)(A) Except as otherwise specifically provided by statute, 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.A. § 2412. 

 To award EAJA fees, the “court must find that (1) the party seeking fees was a 

prevailing party in a civil action; (2) the party timely filed an application for fees; (3) the 

position of the Agency was not substantially justified; and (4) the fees requested are 

reasonable.” 

Ralston v. Astrue, 09-CV-14790, 2011 WL 7299836, *2 (E.D. Mich. 2011) (citations 

omitted). 

 The only disputed issue is whether the Government’s position was substantially 

justified. (Doc. # 29, p. 2). 

1. Substantial Justification 

 The standard for “substantial justification” is that of reasonableness, and the 

Government’s position must be “justified to a degree that could satisfy a reasonable 

person.” Jankovich v. Bowen, 868 F.2d 867, 869 (6th Cir. 1989) (citing Pierce v. 

Underwood, 487 U.S. 552 (1988)). In Pierce, the court further explained that 

“substantially justified” does not mean “reasonably justified.” Pierce at 566, n. 2 (1988). 

The court added that “a position can be justified even though it is not correct, and . . . it 

can be substantially (i.e., for the most part) justified if a reasonable person could think it 

correct, that is, if it has a reasonable basis in law and fact.” Id. The Pierce court 

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rejected the House Report Committee statement that “‘substantial justification’ means 

more than merely reasonable.” Id. at 566. 

 The Government has the “burden of showing that its position in the proceedings 

was ‘substantially justified.’” U.S. v. 0.376 Acres of Land, 838 F.2d 819, 820 (6th Cir. 

1988). Losing the case does not raise a presumption that the Commissioner’s position 

was not substantially justified. Howard v. Barnhart, 376 F.3d 551, 554 (6th Cir. 2004) 

(citing Scarborough v. Principi, 541 U.S. 401, 415 (2004)). Indeed, in reviewing a 

record, a court can find that the government’s position was substantially justified despite 

the fact that “the Secretary’s position was not supported by substantial evidence.” 

Jankovich at 870. “When evaluating the Commissioner’s position, [the court] considers 

the ALJ’s decision as part of the Commissioner’s pre-litigation conduct.” Noble v. 

Barnhart, 230 F.App’x 517, 519 (6th Cir. 2007). But “[w]hether or not the Commissioner 

was substantially justified is a separate question from whether the decision of the ALJ 

was supported by substantial evidence.” Ralston, at *2 (citing Cummings v. Sullivan, 

950 F.2d 492, 298 (7th Cir. 1991)). 

Plaintiff alleges that the Government’s position was not substantially justified 

because the ALJ failed to do a mandatory evaluation of the treating physicians’ 

opinions, made an incorrect assessment, and rendered an opinion unsupported by 

substantial evidence. Plaintiff also says the ALJ’s analysis of the fibromyalgia’s effects 

on Plaintiff’s work capacity was based partially on old Sixth Circuit law. (Doc. # 28, p. 2-

3). 

 The Government contends that the “errors cited by this Court in the merits 

decision were articulation deficiencies, [a]s such the Commissioner’s position in reliance 

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on the ALJ’s findings was reasonably based in law and fact, and an award of fees would 

not be appropriate.” (Doc. # 29, p. 2). Defendant is correct that “[t]he ALJ’s failure to 

articulate his reasoning . . . does not, in and of itself, establish that there was not 

reasonable basis for the ALJ’s decision to deny benefits.” Saal v. Comm’r of Soc. Sec. 

Admin., No. 1:08–cv–347, 2010 WL 2757554, *3 (W.D.Mich. June 24, 2010) (citing 

Anderson v. Commr. of Soc. Sec., 198 F.3d 244 (6th Cir. 1999)). Generally, 

[i]n considering whether the ALJ’s decision was “substantially justified” for 

EAJA purposes, courts distinguish between remands involving “mere 

articulation errors” – cases in which there is record evidence to support 

the ALJ’s decision, but the ALJ fails to adequately articulate his or her 

reasoning--and remands where the district court determines that the 

evidence does not support the ALJ’s decision, even when properly 

considered. . . . Generally, remands stemming from articulation errors do 

not result in a[n] EAJA fee award, while remands following a finding that 

the record evidence does not support the ALJ’s disability determination 

will lead to the payment of attorneys fees. 

Carter v. Astrue, 1:09-CV-0667, 2011 WL 722774, at *2 (N.D. Ohio 2011) (citations 

omitted). 

 The ALJ listed evidence pertaining to Plaintiff’s impairments on four pages under 

the step two analysis, but nothing suggests that the ALJ actually considered and 

weighed the evidence or that he considered the combination of all impairments. Neither 

did the ALJ explicitly state that he considered the combination of all impairments. And, 

he did not set forth the medical evidence on which he based his finding under the step 

three analysis. (Tr. 23). 

 In Carter, supra, the court granted the motion for attorney fees because 

“a ‘mere articulation error’ was not the reason for the Court’s decision to 

reverse and remand this case. Instead, the Court did so because it was 

‘unable to determine whether substantial evidence supports the ALJ’s 

decision’ . . . because (1) the ALJ’s decision does not indicate whether 

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the ALJ considered specifically enumerated categories of evidence, 

in addition to objective medical evidence, that the ALJ must consider in 

making a credibility finding; and (2) the ALJ did not provide specific 

reasons for discounting Carter’s additional evidence in making the 

credibility finding. 

Carter, at *3 (emphasis added). 

 As in Carter, this Court’s decision to remand the case was based on the fact that 

“[t]he ALJ’s conclusory rejection of equivalence at step three makes it impossible for this 

Court to review the adequacy of his determination.” (Doc. # 21, p. 11) This is more 

than an articulation error. 

 Furthermore, the ALJ only briefly referenced selective findings from Dr. Yousuf’s 

opinion and did not state the weight he gave to Dr. Yousuf’s opinion. Dr. Yousuf 

diagnosed Plaintiff with fibromyalgia (Tr. 489-504). When “an ALJ chooses not to give a 

treating source medical opinion controlling weight, and then completely fails to provide 

any explanation for this choice in his narrative decision, it is clear that he has committed 

a procedural error that typically warrants remand of the case. In such a case, the 

Commissioner lacks substantial justification to defend the ALJ’s decision unless he can 

reasonably argue under the applicable case law that the procedural error was 

harmless.” Walker v. Astrue, 3:08-CV-151, 2010 WL 925787 (E.D. Tenn. 2010). 

 Plaintiff points to other errors. The ALJ did not state specific reasons for not 

giving significant weight to the treating source medical opinions of Dr. Shah and Dr. 

Visser. “It is well-established that an ALJ must either accord controlling weight to a 

medical opinion from a treating source or ‘set forth some basis for rejecting [the 

opinion].’” Walker, at *3 (citing Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir.1987). 

A decision denying benefits “must contain specific reasons for the weight given to the 

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treating source’s medical opinion, supported by the evidence in the case record, and 

must be sufficiently specific to make clear to any subsequent reviewers the weight the 

adjudicator gave to the treating source’s medical opinion and the reasons for that 

weight.” Wilson v. Commr. of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) citing Soc. 

Sec. Rul. 96-2p, 1996 WL 374188, at *5 (1996). 

The ALJ also did not discuss certain work-preclusive limitations identified by Dr. 

Shah. The limitations include taking unscheduled breaks every three to four hours for 

eight to ten minutes at a time. The Vocational Expert (“VE”) testified this would be work 

preclusive. Limitations also include Plaintiff’s need to walk for five minutes at least once 

during a work day, and her inability to stand for 20 minutes continuously, which the VE 

testified would limit the number of jobs Plaintiff could perform. (Tr. 62-63). 

 The Sixth Circuit has held on numerous occasions that the Commissioner’s 

position was not substantially justified when the ALJ failed to follow the government’s 

own procedural guidelines in the “good-reason rule” context. See, e.g., Hawke v. 

Astrue, No. 3:07–cv–108, 2009 WL 961783, at *3 (S.D.Ohio Apr. 8, 2009) (holding that 

the Commissioner was not substantially justified when the ALJ failed to provide good 

reasons even though other evidence potentially supported the ALJ); Fisk v. Astrue, No. 

3:05–cv–145, 2009 WL 161335, at *3 (S.D.Ohio Jan. 22, 2009) (finding that the 

Commissioner’s position lacked a reasonable basis when “it overlooked the significance 

of [the] mandatory procedural requirement” of the good reason rule); Walker, at *3 

(finding that, when an ALJ fails to provide good reasons, “the Commissioner lacks 

substantial justification to defend the ALJ’s decision unless he can reasonably argue 

under the applicable case law that the procedural error was harmless”). 

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 The ALJ -- only briefly and selectively -- mentioned the medical reports of Dr. 

Shah and Dr. Visser, and the ALJ did not discuss the reports’ findings that were 

inconsistent with the ALJ’s conclusion. The Court finds that the Commissioner could 

not have reasonably believed that the ALJ satisfied the procedural requirements of the 

good reason rule. 

 Additionally, the ALJ relied on objective tests which are insufficient in 

fibromyalgia cases. (Doc. # 21, p. 19). The ALJ rejected all of Plaintiff’s subjective 

complaints of pain because they were inconsistent with the residual functioning capacity 

assessment. Concerning the ALJ’s credibility findings, the court in Carter noted, 

Judge O’Malley was particularly troubled that the ALJ “discounted all of 

Carter’s subjective complaints of pain and its effects solely because she 

found that there was no objective medical evidence to support Carter’s 

claims.” . . . this type of analysis-based on an implicit finding that the 

claimant is not believable-is exactly that which Social Security Ruling 96-

7p is designed to prevent. See Soc. Sec. Rul. 96-7p, 1996 WL 374186, at 

* 3 (ALJ not free to make credibility determinations based solely upon 

‘intangible or intuitive notion about an individual’s credibility.”). 

Carter, at *3 (N.D. Ohio 2011). 

 The ALJ based credibility findings on Plaintiff’s ability to conduct daily activities 

when the Commissioner’s own procedural guidelines state that the Government does 

“not consider activities like taking care of yourself, household tasks, hobbies, therapy, 

school attendance, club activities, or social programs to be substantially gainful activity.” 

See 20 C.F.R. § 404.1527(c). Nevertheless, the ALJ did not consider Plaintiff’s 

testimony in which she denied the ability to cook, shop or do laundry because of her 

medical condition. (Tr. 49-50). Additionally, the ALJ stated in his report that he “must 

make a finding on the credibility of the statements based on a consideration of the entire 

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case record.” (Tr. 23). Yet, he failed to assess the findings of Dr. Yousuf and Plaintiff’s 

testimony. 

 In sum, when the “ALJ fails to follow established law and ‘clear congressional 

guidance,’ the defendant’s position cannot be substantially justified.” Ralston, at *3 

(citing Reese v. Sullivan, 925 F.2d 1395, 1397 (11th Cir. 1991); Washington v. Heckler, 

756 F.2d 959, 962 (3rd Cir. 1985). Plaintiff is entitled to attorney fees under the EAJA. 

2. Reasonableness of Fees 

 Plaintiff is represented by Robison Law Office, P.C., a law firm in Albion, 

Michigan. Plaintiff requests payment for 24 attorney hours at $150.00/hour, and 11.35 

legal assistant hours at $60.00/hour. (Doc. # 23, p. 4). The Government does not 

contest the amount. “Under EAJA, the amount of attorney fees awarded 

Shall be based upon the prevailing market rate for the kind and quality of 

services furnished except that . . . attorney fees shall not be awarded in 

excess of $125 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 attorney for the proceedings involved justifies a higher fee. 

Ralston, at *4 (citing 28 U.S.C. § 2412(d)(2)(A)). Plaintiff bears the burden to 

prove reasonableness. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 

1933, 76 L.Ed.2d 240 (1983). A court should exclude excessive or inadequately 

documented time. Id. at 433. 

i. Attorney Rate 

 “The appropriate market for calculating attorneys’ fees is the market in 

which the court sits.” Ralston, at *5 (citing Zanon v. Astrue, No. 08 15337, 2010 

WL 1524143, *4 (E.D.Mich. Apr.15, 2010)). Plaintiff lives in the Eastern District 

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of Michigan, and her counsel is here. The appropriate market for calculating 

attorney fees is the Detroit market. Id.

 Plaintiff says that attorney fees should be calculated beginning with the statutory 

cap, adjusting for an increase in the cost of living based on the Consumer Price Index 

(CPI-U). According to the U.S. Department of Labor’s CPI-U from the Detroit-Ann 

Arbor-Flint area, the consumer index as of March 21, 2011, the date when Plaintiff 

became a prevailing party, was 206.816. The CPI-U was 151.3 in March 1996 when 

the $125.00/hour was established. Ralston, at *5; Zanon, at *4 (E.D.Mich. Apr. 15, 

2010). Thus, multiplying $125.00/hour times the ratio of 206.816 divided by 151.3 

equals a cost of living increase to $170.86/hour. Plaintiff’s counsel, Charles A. Robison, 

has been a practicing attorney since 1981 and has represented social security disability 

claimants since 1983. Because his request for attorney fee of $150.00/hour is less than 

$170.00/hour, the Court finds his rate to be reasonable. The Court also finds that 

Plaintiff’s counsel spent a reasonable number of hours in his representation of Plaintiff. 

ii. Legal Assistant Rate

 A 2004 National Utilization and Compensation Survey Report states that legal 

assistants had a billing rate of $95/hour in the Great Lakes Region. Ralston, at *7. 

Sixth Circuit courts have awarded the same or higher rate per hour for paralegal work. 

Id., see Tackett v. Astrue, No. 09–cv–13803, 2011 U.S. Dist. LEXIS 81344, at *7 

(E.D.Mich. July 26, 2011); Forest Serv.Emps. for Envtl. Ethics v. United States Forest 

Serv., 2010 U.S. Dist. LEXIS 131862, at *13 (W.D.Ky. Dec. 14, 2010) ($100.00 per 

hour). 

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 The Court finds both the rate of $60.00/hour and the number of hours requested 

to be reasonable. 

 In sum, the rate of $150.00/hour is to be applied to the requested 24 attorney 

hours for a total of $3,600, and the rate of $60.00/hour is be applied to the requested 

11.35 legal assistant hours for a total of $681. The total award is $4,281.00. 

3. Fees Are Payable to Plaintiff 

 Under EAJA, the court must award fees “to a prevailing party.” 18 U.S.C. § 

2412(d)(1)(A). The government may pay the EAJA fees directly to Plaintiff’s attorney 

“after determining that there is no debt to offset and there is a valid assignment.” 

Ralston, at *7 (citing Astrue v. Ratliff, 130 S. Ct. 2521, 2528-29 (2010)); Bryant v. 

Comm’r. of Soc. Security, 578 F.3d 443, 446-449 (6th Cir. 2009) (under EAJA, attorney 

fees are awarded to the prevailing party and not her counsel). Because Plaintiff does 

not say that there is a valid assignment, and Plaintiff’s counsel did not submit 

verification from the treasury that there are no debts, the Court finds that the 

Government must award fees directly to Plaintiff. Ralston, at *7. 

V. CONCLUSION 

 Plaintiff’s application for attorney fees under EAJA is GRANTED. The 

Commissioner must pay $4,281.00 to Plaintiff. 

IT IS ORDERED.

 /s/ Victoria A. Roberts 

 Victoria A. Roberts 

 United States District Judge 

Date: 5/23/12 

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The undersigned certifies that a copy of this 

document was served on the attorneys of 

record by electronic means or U.S. Mail on 

May 23, 2012May 23, 2012. 

S/Linda Vertriest 

Deputy Clerk 

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