Opinion
Case Number 00-10336-BC
January 26, 2004
On July 22, 2003, this Court issued an opinion and order granting the plaintiff's motion for summary judgment, reversing the decision of the Commissioner of Social Security and remanding the case for further proceedings. Thereafter, the plaintiff filed a motion for attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, and the motion was referred to Magistrate Judge Charles E. Binder for a Report and Recommendation. Magistrate Judge Binder filed a Report and Recommendation on January 13, 2004 in which he stated that fees under the EAJA should not be awarded because the position of the United States, as manifested both by the decision of the Commissioner of Social Security and the legal arguments advanced before this Court, was "substantially justified." The plaintiff has filed timely objections to the Report and Recommendation.
The focus of the plaintiffs objections is on the magistrate judge's "review" of this Court's opinion and order granting the plaintiff relief, specifically with respect to this Court's reliance on Social Security Ruling (SSR) 99-2p, which deals with the manner in which disability claims involving fibromyalgia ought to be assessed. The magistrate judge observed that the effective date of this Social Security Ruling came after the Administrative Law Judge's decision in this case. The magistrate judge then proceeded to analyze whether "an administrative rule [may] have retroactive effect," and, applying Supreme Court precedent discussing the retroactivity of administrative rules, concluded that "SSR 99-2p fails to pass muster." RR at 7.
The plaintiff objects to the magistrate judge's analysis and observes that the brief filed by the United States Attorney in the main action readily acknowledged that SSR 99-2p sets forth the criteria that must be applied when a claimant has been diagnosed with chronic fatigue syndrome (CFS) or fibromyalgia. In fact, the United States Attorney requested that the case be remanded for further proceedings so that the Administrative Law Judge could consider the factors set forth in SSR 99-2p. Moreover, the Sixth Circuit has acknowledged the diagnostic and analytical difficulty presented by CSF and fibromyalgia claims and set forth many of the factors incorporated in SSR 99-2p when evaluating such claims. See Preston v. Sec'y of Health Human Servs., 854 F.2d 815, 819-20 (6th Cir. 1988) (observing also that "[u]nlike most diseases that can be confirmed or diagnosed by objective medical tests, fibrositis can only be diagnosed by elimination of other medical conditions which may manifest fibrositis-like symptoms of musculoskeletal pain, stiffness, and fatigue").
The Court agrees that the magistrate judge incorrectly analyzed the application of SSR 99-2p under a retroactivity analysis because social security rulings are not administrative rules. Consequently, the magistrate judge's reliance on Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988), is misplaced. Rather, social security rulings "indicate what the administration considers when making its determination." Nicely v. McBrayer, McGinnis, Leslie Kirkland, 163 F.3d 376, 385 (6th Cir. 1988) (observing that "social security rulings do not have the force and effect of law or regulation and are not to be relied upon as precedents in determining other cases except where the facts are basically the same"). Social security rulings are given great difference since they reflect the Secretary's interpretation of the statutes and regulations within her charge. See Garcia v. Sec'y of Health Human Servs., 46 F.3d 552, 557 (6th Cir. 1995). They bear some similarity to regulations adopted in accordance with the Administrative Procedures Act in that they will be overturned if they conflict with the plain language of a governing statute. Ibid. They also are "binding on all Social Security Administration personnel, including state agency adjudicators, administrative law judges, and the appeals counsel." Blankenship v. Bowen, 874 F.2d 1116, 1122 (6th Cir. 1989). Nonetheless, since they do not have the force or effect of law in the same manner as do rules and regulations, a retroactivity analysis is inappropriate. This is particularly true when a social security ruling reflects the policies that are set down by the case law and applied in some form or fashion by the agency. In the case of SSR 99-2p, the Secretary asserted the purpose of the ruling was to "restate and clarify" Social Security Administration policy in evaluating disability claims based on CFS. Many of the factors set forth in SSR 99-2p are identified, albeit in much less detail, in Preston.
However, despite the magistrate judge's erroneous reliance on a retroactivity analysis, the Court believes he reached the correct conclusion that the position of the Social Security Commissioner was "substantially justified" in this case. As the court in Preston acknowledged, cases involving disability claims based on fibromyalgia are "complicated by the very nature of [the disease]." Preston, 854 F.2d at 819. There was a genuine dispute in this case, and the Court finds that "reasonable people could differ as to the appropriateness of the contested action." Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal quotes and alterations omitted) (defining "substantially justified" under the EAJA). The ALJ made a disability finding in this case, which the Court found unsupported by substantial evidence in the record. That finding does not necessarily imply, however, that the matter was not genuinely in dispute.
Accordingly, it is ORDERED that the recommendation of the magistrate judge that the plaintiffs motion be denied is ADOPTED.
It is further ORDERED that the report of the magistrate judge is ADOPTED IN PART AND REJECTED IN PART.
It is further ORDERED that the plaintiff's motion for attorney fees under the Equal Access for Justice Act [dkt #20] is DENIED.