Isaacs v. Astrue

Filing 32

AMENDED ORDER. Signed by Hon. Richard J. Arcara on 6/19/2009. (DJD)

Download PDF
UNITED STATES DISTRICT COURT W ESTERN DISTRICT OF NEW YORK CORY ISAACS, Plaintiff, AMENDED D E C IS IO N AND ORDER 0 7 -C V - 2 5 7 A v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, Defendant. T h is case comes before the Court on a motion by plaintiff for an award of c o s ts and attorney fees pursuant to the Equal Access to Judgment Act (the "E A J A "), 28 U.S.C. 2412. Plaintiff asserts that costs and attorney fees under th e EAJA are appropriate because the Commissioner did not complete the re q u ire d assessment of plaintiff's medical conditions, and thus made decisions n o t supported by substantial evidence. In opposing the motion, the C o m m is s io n e r asserts that enough evidence supports the denial of plaintiff's c la im to justify defending that denial before this Court. The issue before this C o u r t, therefore, is straightforward. The Court already has remanded the case fo r an application of the correct legal standard governing an analysis of plaintiff's s e ve re impairment and vocational capacity. Can the Commissioner's litigation p o s itio n in a Social Security disability case rest on legal errors that require re m a n d , and still be "substantially justified" under the EAJA? For the reasons th a t follow, the answer to that question is no, and plaintiff's motion will be granted. B AC K G R O U N D T h e Court will assume familiarity with the substantive details underlying p la in tiff's claim. On April 16, 2007, plaintiff filed a complaint requesting a reversal o r vacation of the Commissioner's denial of his claim for Social Security disability b e n e fits . On December 15, 2008, Magistrate Judge Jeremiah J. McCarthy issued a Report and Recommendation that recommended vacating the Commissioner's d e n ia l and remanding the case for further proceedings. This Court adopted the R e p o rt and Recommendation through an Order dated March 2, 2009. In re s p o n s e to the Court's Order and the judgment that followed, plaintiff filed a m o tio n for costs and attorney fees on March 25, 2009. In arguing for costs and attorney fees, plaintiff emphasizes the legal errors c o m m itte d by the Commissioner that required remand. These legal errors led to th e failure to evaluate the severity of two of plaintiff's three medical c o n d itio n s -- a g o ra p h o b ia and borderline intellectual functioning--and the failure to account for plaintiff's significant non-exertional limitations. According to p la in tiff, there was no reason to commit these errors and no reason to defend a c la im denial that, as a result, assessed only part of the record. Under these c irc u m s ta n c e s , plaintiff asserts, the Commissioner cannot justify his decision to litig a te before this Court and Magistrate Judge McCarthy. 2 In opposition, the Commissioner asserts that the initial claim denial rested on substantial evidence. According to the Commissioner, the record contains re lia b le medical expert opinions confirming that plaintiff has enough vocational c a p a c ity to make disability benefits unnecessary. Although this Court did remand th e case for further proceedings, plaintiff's concerns amount to a disagreement o ve r what weight to assign to different parts of the record. Even if the ultimate o u tc o m e of plaintiff's claim changes, according to the Commissioner, a d isa g re e m e n t over the weighing of the evidence does not warrant awarding costs a n d attorney fees under the EAJA. DISCUSSION I. E A J A Standard of Review "E xc e p t as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses . . . in c u rre d by that party in any civil action . . . unless the court finds that the position o f the United States was substantially justified . . . ." 28 U.S.C. 2412(d)(1)(A). The EAJA contains certain pleading requirements that plaintiffs must meet when a p p lyin g for costs and attorney fees, see id. 2412(d)(1)(B), but none of those re q u ire m e n ts is in dispute. The issue in dispute is whether the Commissioner's litig a tio n position before this Court and Magistrate Judge McCarthy was s u b s ta n tia lly justified. More specifically, because this Court remanded this case to correct legal errors that truncated the analysis of plaintiff's claim improperly, 3 th e issue here is whether the Commissioner's decision to litigate in defense of the d e n ia l of plaintiff's claim can be substantially justified. II. S u b s ta n tia l Justification Determining substantial justification requires an assessment of the C o m m is s io n e r's litigation position before this Court and Magistrate Judge M c C a rth y. "W h e th e r or not the position of the United States was substantially ju s tifie d shall be determined on the basis of the record (including the record with re s p e c t to the action or failure to act by the agency upon which the civil action is b a s e d ) which is made in the civil action for which fees and other expenses are s o u g h t." Id. The Commissioner must establish that he acted reasonably in re vie w in g the entire record and applying the correct legal standard to it. "The G o ve rn m e n t bears the burden of showing that its position was substantially ju s tifie d , and to meet that burden, it must make a strong showing that its action w a s justified to a degree that could satisfy a reasonable person . . . . [I]t is w e ll-e s ta b lis h e d that the Government's prelitigation conduct or its litigation p o s itio n could be sufficiently unreasonable by itself to render the entire G o ve rn m e n t position not substantially justified." Healey v. Leavitt, 485 F.3d 63, 6 7 (2d Cir. 2007) (internal quotation marks and citations omitted). Here, the Commissioner's failure to complete the mandatory sequential e va lu a tio n process before denying plaintiff's claim rules out the possibility of s u b s ta n tia l justification. The sequential evaluation process requires a complete 4 a n a lys is of any claims of severe impairments that are more than de minimis c la im s . The process also requires an assessment of vocational capacity that a c c o u n ts for significant non-exertional limitations. As noted in Magistrate Judge M c C a rth y's Report and Recommendation, the Commissioner did not complete th e sequential evaluation process as a result of legal errors. Cf. Jackson v. H e c k le r, 629 F. Supp. 398, 404 (S.D.N.Y. 1986) ("W h e n the government is faced w ith an administrative record which contains errors of law and fact but persists in s u p p o rtin g the decision of the Agency and extends litigation for months until it c h a n g e s position, the courts of this district have held that the Secretary's litigation p o s itio n was not substantially justified.") (citations omitted). The legal errors are s ig n ific a n t not only because they reflect an improper use of a mandatory process, b u t also because they cut the Commissioner's analysis short after only a partial a s s e s s m e n t of the severity of only one of plaintiff's three medical conditions. The litig a tio n that has occurred before this Court so far in this case resulted solely fro m those legal errors. Under these circumstances, the Commissioner's in s is te n c e on defending an incomplete analysis of the record cannot be s u b s ta n tia lly justified. Cf. Smith by Smith v. Bowen, 867 F.2d 731, 735 (2d Cir. 1 9 8 9 ) ("In defending an agency decision, even a reasonable one, the G o v e rn m e n t should be discouraged from engaging in dilatory or otherwise u n a c c e p tab le litigation tactics."). 5 III. A tto r n e y Fees H a vin g found no substantial justification of the Commissioner's litigation p o s itio n , the Court must decide the amount of costs and attorney fees to be a w a rd e d under the EAJA. Upon completion of further proceedings consistent w ith Magistrate Judge McCarthy's Report and Recommendation, the C o m m is s io n e r may yet take a position on the ultimate merits of plaintiff's claim th a t could be substantially justified without being tainted by his unjustified litig a tio n prior to remand. For this reason, the normal rule awarding costs and a tto rn e y fees for all phases of litigation in a case does not apply at this point here. See Trichilo v. Sec'y of Health & Human Servs., 832 F.2d 743, 745 (2d Cir. 1987) ("[A ]s long as the government's underlying substantive position was not `s u b s tan tia lly justified,' the plaintiff is entitled to recover all reasonable attorney's fe e s incurred.") (citation omitted). Nonetheless, where as here the Court can s e p a ra te unjustified segments of litigation from potential future segments whose ju s tific a tio n is unknown, it may assess costs and attorney fees for the unjustified s e g m e n ts . Cf. Bowen, 867 F.2d at 735 ("If [the district court] found that the G o ve rn m e n t's position in any segment of the litigation was not substantially ju s tifie d , it should have awarded fees for the time spent by [plaintiff's] counsel in s u c c e s s ful ly opposing the Government's position in that segment."). F o r the litigation that occurred before this Court and Magistrate Judge M c C a rth y to date, plaintiff's computation of costs and attorney fees is reasonable. 6 "T h e amount of fees awarded . . . shall be based upon prevailing market rates for th e kind and quality of the services furnished, except that . . . attorney fees shall n o t be awarded in excess of $125 per hour unless the court determines that an in c re a s e in the cost of living or a special factor, such as the limited availability of q u a lifie d attorneys for the proceedings involved, justifies a higher fee." 28 U.S.C. 2412(d)(2)(A). The current statutory cap of $125 per hour took effect in 1996, K e r in v. U.S. Postal Serv., 218 F.3d 185, 189 (2d Cir. 2000) (citation omitted), a n d the Court may revise it upward to reflect inflation as determined by the C o n s u m e r Price Index. Harris v. Sullivan, 968 F.2d 263, 265 (2d Cir. 1992) (c ita tio n s omitted). Plaintiff here has provided documentation of an appropriate n u m b e r of hours needed to litigate through the oral argument of the pending m o tio n . In arguing to remand the case for further proceedings, plaintiff needed to re vie w the record to determine all of the factual information ignored as a result of le g a l errors, to research the legal standards for remanding his case, to draft the p a p e rs related to the pending motion, and to appear for oral argument before this C o u rt and Magistrate Judge McCarthy. The total number of hours that plaintiff h a s listed in his motion papers relates reasonably to those tasks. The hourly ra te s that plaintiff has cited reflect timely information from the Consumer Price In d e x. Additionally, the Court notes that many attorneys decline to take cases s u c h as plaintiff's out of a lack of familiarity with the nuances of Social Security d isa b ility law. The Empire Justice Center is a law office that takes disability 7 c a s e s regularly, has the expertise to litigate such cases, and indeed has re p re s e n te d plaintiff appropriately in the litigation before this Court and Magistrate J u d g e McCarthy. Under these circumstances, plaintiff has justified his request for a total amount of $12,676.60. C O N C L U S IO N N o n e of the litigation that occurred to remand this case would have been n e c e s s a ry had the Commissioner acknowledged the obligation to develop a full re c o rd . Plaintiff spent a reasonable amount of time and energy litigating to e n s u re that the ultimate outcome of the case will rest on an assessment of all p o te n tia lly dispositive facts. For all of the above reasons, the Court hereby grants p la in tiff's motion in its entirety. The Commissioner is hereby directed to pay p la in tiff costs and attorney fees in the amount of $12,676.60 payable to the E m p ire Justice Center, pursuant to the assignment of the plaintiff dated March 4, 2 0 0 8 , within 30 days of the docketing of this Order. SO ORDERED. s/ Richard J. Arcara HONORABLE RICHARD J. ARCARA CHIEF JUDGE UNITED STATES DISTRICT COURT DATED: June 19, 2009 8

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?