Whittington v. Berryhill

Filing 24

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the motion of plaintiff (Doc. 20 ) for attorney's fees in the sum of $4,992.07, less any offset to satisfy any pre- existing debt the litigant may owe the United States, is sustained. IT IS FURTHER ORDERED after federal debt offset, that the award be made payable to David Hicks, Esq., attorney for the plaintiff, 7720 Stonebridge Golf Drive, Maryville, IL 62062. Signed by Magistrate Judge David D. Noce on 3/12/2020. (AFC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

BERNARD WHITTINGTON,
Plaintiff,
v.
ANDREW M. SAUL,
Commissioner of Social Security,
Defendant.

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No. 4:18 CV 547 DDN

MEMORANDUM AND ORDER
Before the Court is the motion of plaintiff Bernard Whittington for an award of attorney's
fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). For the reasons set
forth below, attorney's fees in the sum of $4,992.07, less any offset to satisfy pre-existing debt
the litigant may owe the United States, are ordered.

BACKGROUND
On May 22, 2017, the ALJ issued a decision that plaintiff was not disabled under Title II
of the Social Security Act through December 31, 2008, the last date insured. Plaintiff’s sole
argument on judicial review was that at Step 3 the ALJ erred by not obtaining a consultative
medical expert opinion regarding medical equivalence of plaintiff's back impairment with the
requirements of the presumptively disabling condition described by Listing 1.04. Plaintiff argues
that the ALJ erred in finding the factors of Listing 1.04 unmet. Listing 1.04 provides:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis,
spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root (including the cauda equina) or
the spinal cord.
1.04. On review, this Court concluded that the final decision of the Commissioner must be
reversed under Sentence 4 of 42 U.S.C. § 405(g), and it remanded the case to obtain a medical

consultant’s opinion regarding whether plaintiff Bernard Whittington met the requirements of
Listing 1.04 for his severe spinal impairment on or before December 31, 2008.

DISCUSSION
In support of plaintiff's motion, counsel's staff tracked relevant hours using timekeeping
computer software and used the Consumer Price Index to provide an accurate hourly rate
measurement in this legal market. (Doc. 20.)

In this case, plaintiff signed an agreement

assigning any fee under the EAJA to plaintiff's attorney, less any debt owed to the United States
by plaintiff. (Id.)
In opposition to the motion for attorney's fees, defendant concedes that plaintiff was the
prevailing party and that the number of requested hours and requested hourly fee, set out in Doc.
20, appear reasonable. (Doc. 23.) However, defendant argues that its position in the litigation
was substantially justified and the plaintiff's application is untimely. The Court disagrees.
In its memorandum opinion, the Court decided that the ALJ erred in not developing the
record fully and fairly regarding Listing 1.04.

The Court also determined that the ALJ's

determination regarding Listing 1.04, stated in one sentence in the ALJ's opinion, 1 was not
supported by substantial evidence on the record. (Doc. 18 at 9-10) (describing several
examination reports of a positive straight leg raising test, back weakness, loss of sensation at L5
and S1, spinal nerve irritation at several levels, a question of disk disease, and disks protruding at
three levels.)

Accordingly, the government's position was not justified. Further, the delay in

filing was not so long as to prejudice the defendant.

CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the motion of plaintiff (Doc. 20) for attorney's fees in
the sum of $4,992.07, less any offset to satisfy any pre-existing debt the litigant may owe the
United States, is sustained.

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"The claimant does not meet Listing 1.04 for a spinal disorder because he lacks evidence of
nerve root compression, spinal arachnoiditis, or pseudo-claudication of his lumbar spine that
results in an inability to ambulate effectively as of the date last insured." (Doc. 9-3 at 18.)

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IT IS FURTHER ORDERED after federal debt offset, that the award be made payable
to David Hicks, Esq., attorney for the plaintiff, 7720 Stonebridge Golf Drive, Maryville, IL
62062.

/s/ David D. Noce
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UNITED STATES MAGISTRATE JUDGE

Signed on March 2, 2020.

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