United States District Court, E.D. Kentucky
IN RE FEE MOTIONS IN VARIOUS SOCIAL SECURITY CASES AFFECTED BY THE SIXTH CIRCUIT DECISION IN HICKS V. BERRYHILL, NO. 17-5206.
MEMORANDUM OPINION AND ORDER
M. Hood Senior U.S. District Judge
matters come before the Court on Motions for Attorneys'
Fees pursuant to the Equal Access to Justice Act, 28 U.S.C.
§ 2412, filed in the above-referenced actions. The
Motions have been fully briefed, or the time for filing of
replies has expired, and all are now ripe for the Court's
review. For the reasons set forth herein, the motions are
Plaintiffs before the Court were victims of attorney Eric
Conn's scheme to defraud the Social Security
Administration (“SSA”). Hicks v. Comm'r
of Soc. Sec., 909 F.3d 786, 792 (6th Cir. 2018). Each
Plaintiff retained Conn to appeal the initial denial of their
Social Security Disability Insurance (“SSDI”) or
Supplemental Security Income (“SSI”) benefits.
Id. Conn would include medical records from one of
four examining doctors as part of the record, and in each
case “ALJ David Daugherty rel[ying] exclusively on the
doctors' medical opinions [would] conclude on the record
... that plaintiffs were disabled and thereby entitled to
either SSI or SSDI benefits.” Id. In reality,
Conn worked with the doctors to use template Residual
Function Capacity forms, which conveyed that each Plaintiff
was disabled. Id. at 793. Conn then bribed Daugherty
to “issue[ ] favorable rulings to Conn's
in July 2014, the Office of the Inspector General at the SSA
determined that there were 1, 787 individuals-including
Plaintiffs-who were represented by Conn and whose
applications were potentially “tainted by fraud.”
Id. at 794. As required by the Social Security Act,
in May 2015, the SSA began the process of redetermining each
Plaintiff's eligibility for SSDI or SSI benefits.
Id. The SSA explained that it was required to
“disregard any evidence from one of the medical
providers [ ] when the information was submitted by
representative Eric C. Conn or other representatives
associated with Mr. Conn's law office.”
Id. at 794-95. In each case, after ignoring that
allegedly-fraudulent evidence submitted by Conn, the SSA
determined that there was not enough evidence in the record
to find the Plaintiffs disabled. Id. at 795. Thus,
the cases were remanded for new hearings before an ALJ; at
those hearings, Plaintiffs were permitted to submit
additional evidence, which was considered if “it was
‘new and material' and concerned plaintiffs'
disabilities on or before the date of Daugherty's initial
decision.” Id. If requested, Plaintiffs could
receive assistance developing the record. Id.
the hearings, the ALJs ignored the medical reports from the
doctors working with Conn, but considered all the other
medical evidence (both old and new) in the files.
Id. In Plaintiffs' cases, the ALJs determined
that each Plaintiff had not been entitled to benefits, and
any benefits payed were to be treated as
“overpayment.” Id. Each Plaintiff
exhausted administrative remedies and then sought relief in
federal district court challenging the SSA's
redetermination process as violating the Social Security Act,
the Due Process Clause of the Fifth Amendment, and the
Administrative Procedure Act (“APA”).
Id. District judges in this District issued
conflicting decisions and the consolidated cases were
appealed to the Sixth Circuit. Id. The Sixth Circuit
found that the SSA's redetermination process violated
both the Due Process Clause and the Administrative Procedure
Act and remanded the cases for proceedings consistent with
its opinion. Id. at 813.
5, 2019, the undersigned remanded the above cases to the SSA
for redetermination consistent with Hicks and
pursuant to sentence four of 42 U.S.C. § 405(g). Now
before this Court are Plaintiffs' ripe Motions for
Attorneys' Fees under the Equal Access to Justice Act
remand to the SSA, the plaintiffs seek attorney fees under
the Equal Access to Justice Act
(“EAJA”). The EAJA provides, in relevant part:
Except as otherwise specifically provided by statute, a court
shall award to a prevailing party other than the United
States fees and other expenses ... 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.
the Court must assess the fee petition in light of the
following factors: whether the plaintiff was a prevailing
party; whether the government's position was
substantially justified; and whether any special
circumstances exist that make an award unjust. I.N.S. v.
Jean, 496 U.S. 154, 158, 110 S.Ct. 2316, 110 L.Ed.2d 134
(1990); DeLong v. Comm'r of Soc. Sec., 748 F.3d
723, 725 (6th Cir. 2014). In analyzing whether the requested
fee is appropriate, the Court takes a “fresh look at
the case from an EAJA perspective, and reach a judgment on
fees and expenses independent from the ultimate merits
decision.” Phillips v. Astrue, No.
2:08-CV-048, 2010 WL 625371 (E.D. Tenn. Feb. 17, 2010)
(citing Fed. Election Comm'r v. Rose, 806 F.2d
1081, 1087-90 (D.C. Cir. 1986)).
undisputed that the plaintiffs are prevailing parties within
the meaning of the EAJA. Howard v. Saul, No.
7:16-cv-51-DCR, 2019 WL 5191831, at *3 (E.D. Ky. Oct. 15,
2019). A prevailing party is one who obtains a
“material alteration of the legal relationship of the
parties” through a “judgment on the
merits.” Buckhannon Bd. & Care Home, Inc. v.
W.Va. Dep't of Health & Human Res., 532 U.S.
598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). A remand to
the SSA under sentence four of 42 U.S.C. § 405(g)
satisfies this definition. See Turner v. Comm'r of
Soc. Sec., 680 F.3d 721, 723 (6th Cir. 2012) (citing
Shalala v. Schaefer, 509 U.S. 292, 300, 113 S.Ct.
2625, 125 L.Ed.2d 239 (1993)). However, this is only a
threshold determination; the Court must next determine
whether the SSA's position was substantially justified.
Plaintiffs' Motions fail, however, because the
Government's position was substantially justified, so the
requirements of the EAJA are not met. Under the EAJA,
“[a] position is substantially justified when it is
justified in substance or in the main-that is, justified to a
degree that could satisfy a reasonable person.”
Howard v. Barnhart, 376 F.3d 551, 553 (6th Cir.
2004) (internal quotation marks omitted) (quoting Pierce
v. Underwood, 487 U.S. 552, 565 (1988)). A court must
determine if the government's position, “as a
whole, ” including “both the underlying agency
action and the current litigation” is justified.
Amezola-Garcia v. Lynch, 835 F.3d 553, 555 (6th Cir.
2016) (quoting E.E.O.C. v. Memphis Health Ctr.,
Inc., 526 Fed.Appx. 607, 615 (6th Cir. 2013)). The
government has the burden of establishing substantial
justification. Scarborough v. Principi, 541 U.S.
401, 408, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004).
justified means justified in substance or in the main-that
is, justified to a degree that could satisfy a reasonable
person.” Marshall v. Comm'r of Soc. Sec.,
444 F.3d 837, 842 (6th Cir. 2006) (quoting Pierce v.
Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101
L.Ed.2d 490 (1988)). In other words, a “[a] position
can be justified even though it is not correct and can be
justified if a reasonable person could think it correct, that
is, that it has a reasonable basis in law and fact.”
Gray v. Comm'r of Soc. Sec., 23 Fed.Appx. 436,
436 (6th Cir. 2001); Noble v. Barnhart, 230
Fed.Appx. 517, 518 (6th Cir. 2007) (An erroneous position is
substantially justified “if there is a genuine dispute,
or if reasonable people could differ as to the
appropriateness of the contested action.”).
Court reviews the SSA's position in its entirety. The
position of the Commissioner “may be substantially
justified even if a district court rejects it, ”
id. (citing Couch v. Sec. of Health & Human
Servs., 749 F.2d 359, 360 (6th Cir. 1984)), and even if
a court found the Commissioner's position to not be
supported by substantial evidence, Howard, 376 F.3d
at 554 (citing Pierce, 487 U.S. at 569 (“The
fact that we found the Commissioner's position was
unsupported by substantial evidence does not foreclose the
possibility that the position was substantially
justified.”). “Congress did not ... want the
substantially justified standard to be read to raise a
presumption that the Government position was not
substantially justified simply because it lost the
case.” Scarborough, 541 U.S. at 415 (citations
and internal quotations ...