Isaacs v. Astrue

Filing 32

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

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