Youngblood v. Colvin

Filing 43

ORDER signed by Judge J P Stadtmueller on 6/27/14 granting 38 Plaintiff's Motion for an Award of Attorney Fees; an award of attorney's fees in the sum of $15,900.75 shall be paid by the Commissioner in full satisfaction and settlement of any and all claims the plaintiff may have in this matter pursuant to the Equal Access to Justice Act. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JACQUELINE YOUNGBLOOD,
Plaintiff,
v.

Case No. 13-CV-209-JPS

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

ORDER
Defendant.
This case has had a long and torturous path. After the plaintiff filed
her opening brief seeking remand or an award of benefits (Docket #15), the
Commissioner moved to remand the case for further proceedings (Docket
#16). The plaintiff opposed that request, instead digging in and demanding
an award of benefits. (Docket #18). The Court entered an order, granting the
Commissioner’s motion in part, and denying the plaintiff’s motion for an
award of benefits. (Docket #21). Because of confusion amongst the parties
and the Court regarding the sentence pursuant to which the case needed to
be remanded, the Court vacated its initial order and required further briefing
from the parties. (Docket #31). The parties filed further briefs consistent with
their prior positions—the Commissioner seeking remand and the plaintiff
seeking an award of benefits. (Docket #32, #33, #34, #35).
Finally, on March 4, 2014, the Court entered an order remanding this
case for further proceedings, in keeping with the Commissioner’s request.
(Docket #36). Neither party appealed the Court’s ruling, making it final.
Through counsel, plaintiff thereafter timely filed a motion for attorney fees,
pursuant to the Equal Access to Justice Act (EAJA). 28 U.S.C. §§ 2412(d)(1)(b),
(d)(2)(G).

The Commissioner opposes that request in part, arguing that the
plaintiff should not recover any fees for work completed after the
Commissioner’s motion to remand. (Docket #41). The Commissioner argues
that, after the point that the plaintiff refused an offer to remand the case,
plaintiff did not achieve any success: she did not receive an award of benefits,
as she had held out for. (Docket #41). The plaintiff disagrees, arguing that she
did achieve some success and that the Commissioner’s position was not
substantially justified. (Docket #42). The Court must now resolve this
dispute.
However, before doing so, the Court describes what is not at issue.
First, the hourly rate suggested by the plaintiff—$185.00 for hours worked
in 2013 and $187.50 for hours worked in 2014—is reasonable. That rate is
consistent with the rate of inflation and plaintiff’s counsel’s abilities (see
Docket #39); moreover, the Government does not oppose it (see Docket #41).
Second, plaintiff’s counsel spent 29.60 hours working on the case prior to the
Commissioner’s motion to remand and 2.80 hours on her opening brief in
support of her EAJA request; the Government does not oppose an award of
EAJA fees for that work. Accordingly, the Court begins its analysis with a
baseline assumption that the plaintiff is entitled to an award of $6,001.001 in
EAJA fees, representing:
1)

$5,476.00 for 29.60 hours worked at a rate of $185.00 in 2013,
prior to the Commissioner’s motion for remand; and

2)

$525.00 for 2.80 hours worked at a rate of $187.50 in 2014, in
preparing the motion for an award of EAJA fees.

1

Not the Commissioner’s suggested $5,994.00, which is based upon having
calculated the EAJA-related hours at the 2013 rate.

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Nonetheless, the Court must still determine whether the plaintiff is
entitled to: (1) fees for hours worked after the Commissioner’s motion for
remand; and (2) fees for hours worked in preparing her reply in support of
her EAJA request.
The EAJA allows for an award of fees to a plaintiff in cases against the
United States when: (1) the United States’ position was not “substantially
justified”; (2) there is no special circumstance that would render an award
unjust; and (3) the plaintiff’s application for fees is timely. 28 U.S.C.
§§ 2412(d)(1)(A), (B); see also United States v. Hallmark Const. Co., 200 F.3d
1076, 1078–79 (7th Cir. 2000) (citing Commissioner, INS v. Jean, 496 U.S. 154,
158 (1990)); Uphill v. Barnhart, 271 F. Supp. 2d 1086, 1090 (E.D. Wis. 2003)
(citing Hallmark, 200 F.3d at 1078–79). That determination is particularly
complicated in this case because the plaintiff received positive results (a
remand) that did not fulfill her entire request and the fact that there were
more rounds of briefing than is typical in Social Security cases. Case law in
the district courts is split on whether EAJA fees should be awarded for time
spent after an offer of remand. Schroeder v. Barnhart, No. 98-CV-6152, 2002
WL 31452428, at *2–*3 (S.D.N.Y. Jan.22, 2002) (denying fees where plaintiff
should have recognized that the controlling case law warranted remand);
Tavarez v. Comm'r, Soc. Sec. Admin., No. 00-CV-4317, 2001 WL 936240, at *3
(S.D.N.Y. Aug.17, 2001) (denying fees where conflicting evidence warranted
remand); Hernandez v. Apfel, No. 96-CV-7231, 2001 WL 118604, at *2–*3
(S.D.N.Y. Feb.8, 2001) (same); and McLaurin v. Apfel, 95 F. Supp. 2d 111, 116
(E.D.N.Y. 2000) (same). Contra Holmes v. Astrue, No. 08-1829, 2010 WL
3220085, at *4 (D.S.C. Aug. 12, 2010) (“Although the court rejected Plaintiff's
position as to remand based on ambiguity in the record regarding the merits,
it is persuaded that the closeness of the question combined with the prior
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extreme delay—over six years—justified Plaintiff's opposition to remand. For
these reasons, the court disagrees with the Commissioner that the hours
spent opposing remand were unreasonably expended and awards Plaintiff
attorney's fees for those hours.”); Harris v. Astrue, 701 F. Supp. 2d 410, 413
(E.D.N.Y. 2010) (EAJA fees appropriate where offer of remand came after
plaintiff had filed initial brief and request for award of benefits had some
merit); Pereira v. Astrue, 739 F. Supp. 2d 267, 271 (E.D.N.Y. 2010) (EAJA fees
reasonable where sustained request for fees “was not unreasonable or
frivolous”); Uphill, 271 F. Supp. 2d at 1092 (awarding partial fees); Burt v.
Astrue, No. 08-CV-1427, 2011 WL 1325607, at *6 (E.D. Pa. Apr. 7, 2011)
(awarding benefits, closely examining procedural record).
In support of her request to limit EAJA, the Commissioner cites Uphill,
a 2003 case from the Eastern District of Wisconsin. (Docket #41, 2–4 (citing
Uphill, 271 F. Supp. 2d at 1091–94). In that case, Judge Adelman provided a
very good framework for analyzing EAJA requests in cases like this one,
where the plaintiff has opposed a motion for remand. Uphill, 271 F. Supp. 2d
at 1091. In such cases, “the court must analyze the basis for the plaintiff’s
opposition.” Id. “If the plaintiff opposed remand in order to obtain a judicial
award of benefits, the court must determine whether plaintiff's expectation
of such an award was reasonable. If so, full fees should be awarded; if not,
fees should be awarded only for the time spent prior to the motion to
remand.” Id., at 1091–92 (citing McLaurin, 95 F. Supp. 2d at 117; other
citations omitted). This is particularly true in light of the EAJA’s purpose “to
eliminate the financial disincentive to challenge unreasonable governmental
action and to encourage counsel to take cases involving such challenges.
Uphill, 271 F. Supp. 2d at 1092 (citing Krecioch v. United States, 316 F. 3d 684,
686 (7th Cir. 2003); Sullivan v. Hudson, 490 U.S. 877, 883–84 (1989)). While the
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Court must be sure to remember that the Commissioner holds the
responsibility to award benefits where there is conflicting evidence, “in those
cases where the evidence is lopsided, and counsel stands a reasonable chance
of obtaining an award from the court, the EAJA should not provide a
disincentive to seeking such an award.”
This is one of those cases where it was wholly reasonable for the
plaintiff to reject the Commissioner’s offer for remand so as to seek an award
of benefits from the Court. Here, the evidence was, indeed, lopsided.
Ultimately, the Court found certain limited questions remaining as to
whether the record contains evidence of deficits in adaptive functioning, thus
requiring remand; but that was an extremely close question, which the Court
had to spend a majority of its order discussing. (Docket #36 at 4–9). On the
other hand, the remaining determinations were not close, all favoring the
plaintiff. The Court even reiterated its dissatisfaction with the
Commissioner’s argument that remand was necessary for further IQ testing
(Docket #36 at 9), and noted the substantial support for the remaining
requirements (Docket #36 at 4, 9). The evidence was thus lopsided—three
pieces of the analysis weighing firmly in the plaintiff’s favor, and the other
a draw—and it was absolutely reasonable for the plaintiff to reject the
Commissioner’s offer for remand. See Uphill, 271 F. Supp. 2d at 1092 (“in
those cases where the evidence is lopsided, and counsel stands a reasonable
chance of obtaining an award from the court, the EAJA should not provide
a disincentive to seeking such an award.”).2
2

The parties discuss whether or not the plaintiff achieved success by having
the Court restrict the Commissioner on remand (Docket #41 at 4; Docket #42 at 4–8).
But, under the Uphill framework, this is ultimately irrelevant, because the Court
determined that the plaintiff’s expectation of an award was reasonable. See 271 F.
Supp. 2d at 1091–92.

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This is particularly true in light of the Kafka-esque bureaucratic
nightmare that the plaintiff has been subjected to over the last eight years (she
filed for benefits in September of 2006). See Burt, 2011 WL 1325607, at *6
(awarding benefits after taking serious issue with the procedural issues
suffered by the plaintiff). It is unimaginable that after two hearings before an
administrative law judge and two visits to the Social Security Appeals
Council (the first visit resulting in a remand), the Commissioner is still
attacking the validity of IQ determinations made by her own experts. (See
Docket #21 at 1–2; Tr. 7, 18–25, 428–42). Given the unconscionable length of
time that has passed between the plaintiff’s initial application and
today—during which time she cannot work, but also is not receiving any
income—and abject failure of the administrative system to adequately
address her claims, the Court finds that the plaintiff’s choice to seek benefits
from this Court was totally reasonable. Not only was it based upon a
lopsided evidentiary record, it was also the only way to avoid a costly and
time-consuming remand for additional evidence-gathering and a third
hearing. Although she ultimately did not prevail, the plaintiff’s position was
reasonable.
“If counsel has a reasonable chance of obtaining benefits from the
court, without another round of administrative proceedings (and the
attendant delay), he or she should be encouraged to pursue that remedy.”
Uphill, 271 F. Supp. 2d at 1092. That is precisely what occurred, here. Thus,
the Court will grant the plaintiff’s full EAJA request. Plaintiff’s counsel has
documented his work and hours well; that work and time was necessary
given the complexity of this case. Moreover, the Court will also grant
attorney fees for the time plaintiff’s counsel spent drafting the EAJA reply
brief. Comm’r, I.N.S. v. Jean, 496 U.S. 154, 162–66 (1990).
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IT IS HEREBY ORDERED that the plaintiff’s motion for an award of
attorney fees (Docket #38) be and the same is hereby GRANTED, and an
award of attorney’s fees in the sum of $15,900.75 shall be paid by the
Commissioner in full satisfaction and settlement of any and all claims the
plaintiff may have in this matter pursuant to the Equal Access to Justice Act.
These fees are awarded to the plaintiff and not the plaintiff’s attorney and
can be offset to satisfy pre-existing debts that the litigant owes the United
States under Astrue v. Ratliff, 130 S. Ct. 2521 (2010). If counsel for the parties
verify that the plaintiff owes no pre-existing debt subject to offset, then the
defendant shall direct that the award be made payable to the plaintiff’s
attorney pursuant to the EAJA assignment signed by the plaintiff and
counsel. If the plaintiff owes a pre-existing debt subject to offset in an amount
less than the EAJA award, the Social Security Administration will instruct the
U.S. Department of Treasury that any check for the remainder after offset
will be made payable to the plaintiff and mailed to the business address of
the plaintiff’s attorney.
Dated at Milwaukee, Wisconsin, this 27th day of June, 2014.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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