Uphill v. Barnhart

• Decision Date: 03 July 2003
• Docket Number: No. 02-C-0008.,02-C-0008.
• Citation: Uphill v. Barnhart, 271 F.Supp.2d 1086 (E.D. Wis. 2003)
• Parties: Gary A. UPHILL, Plaintiff, v. Jo Anne B. BARNHART, Commissioner of the Social Security Administration, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

271 F.Supp.2d 1086

Gary A. UPHILL, Plaintiff, v. Jo Anne B. BARNHART, Commissioner of the Social Security Administration, Defendant.

No. 02-C-0008.

United States District Court, E.D. Wisconsin.

July 3, 2003.

COPYRIGHT MATERIAL OMITTED

David F. Traver, Milwaukee, WI, for Plaintiff.

Penelope C. Fleming, Milwaukee, WI, for Defendant.

DECISION AND ORDER ON EAJA FEE REQUEST

ADELMAN, District Judge.

I. FACTS AND BACKGROUND

Before me is plaintiff Gary Uphill's application for an award of attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. Plaintiff brought this action under 42 U.S.C. § 405(g) challenging the partially unfavorable decision of defendant Jo Anne Barnhart, Commissioner of the Social Security Administration ("the Commissioner"), on his application for disability benefits under the Social Security Act. Plaintiff applied for benefits in June 1997, alleging that he had been disabled since April 19, 1996. His application was denied initially and on reconsideration. He sought and obtained a hearing before an Administrative Law Judge ("ALJ"). On September 18, 1998, the ALJ determined that plaintiff was disabled for a "closed period" extending from April 19, 1996 to May 6, 1997, but that he ceased being disabled thereafter.

Plaintiff asked the Appeals Council to review the ALJ's decision, but the Administration lost his file. Therefore, on December 11, 2000, the Council remanded the case for another hearing and redevelopment of the record. However, on October 16, 2001, the Milwaukee social security office located the original record and forwarded it to the Appeals Council. The Council then vacated its previous order, and, on December 13, 2001, denied plaintiff's request for review. The ALJ's September 18, 1998 decision thus became the final decision of the Commissioner.

Plaintiff commenced this action for judicial review on January 2, 2002. He asked the court to either find him disabled after May 6, 1997 and thus entitled to benefits or, alternatively, to remand the case for further proceedings. The matter was assigned to Magistrate Judge Patricia J. Gorence for pre-trial proceedings, and, pursuant to the standing procedure of this district, a briefing schedule was established.¹ On April 26, 2002, plaintiff filed a brief urging four bases for reversal: (1) that the ALJ failed to consider the entire record, including evidence favorable to him; (2) that the ALJ failed to properly evaluate the credibility of plaintiff's testimony regarding his post-May 6, 1997 condition; (3) that the ALJ who conducted the hearing did not sign the decision;² and (4) that the ALJ applied an incorrect standard for termination of benefits following a "closed period" of disability. Plaintiff argued that the ALJ's errors warranted judicial restoration of benefits.

On May 22, 2002, the Commissioner requested and was granted a 30 day extension to file her opposing brief. However, on June 26, 2002, the Commissioner moved the court to enter judgment reversing the ALJ's decision and remanding the case for further proceedings. The Commissioner conceded that the ALJ failed to properly evaluate plaintiff's subjective allegations of pain under SSR 96-7p, but argued that because of conflicting evidence in the record it would be improper for the court to reinstate benefits. Regarding plaintiff's argument that the Commissioner failed to apply the proper standard for termination of benefits, the Commissioner stated that remand would "address [plaintiff's] concern" (R. 13 at 5), but did not suggest how the ALJ should proceed on remand or ask the court to address the issue. The Commissioner noted that one ALJ is permitted to sign a decision on behalf of another ALJ who held the hearing.

Plaintiff opposed the Commissioner's motion to remand. He argued that the Commissioner bore the burden of proving medical improvement sufficient to justify termination of benefits, and that because she had not satisfied her burden a judicial award of benefits was warranted. Further, given the inexcusable delays in the case, he argued that "a remand for more of the same is hardly a remedy." (R. 14 at 6.)

On November 25, 2002, Judge Gorence recommended that the case be remanded, stating that the main issues raised by plaintiff — the need to consider evidence favorable to him, the credibility of his complaints after May 6, 1997, and medical improvement after a closed period of disability — were matters for the ALJ to decide, not the court.³

Plaintiff objected. While he did not quarrel with Judge Gorence's finding that he had prevailed on the three issues requiring reversal, he argued that the court should restore his benefits rather than giving the Commissioner another bite at the apple. He also claimed that by failing to provide direction on the burden of proof issue Judge Gorence implicitly and incorrectly placed on him the burden of proving that he remained disabled. Defendant responded that remand was proper because there were unresolved factual issues that should be addressed by the ALJ and because the record did not compel a finding of disability. In his reply, plaintiff again urged the court to order "restoration of [his] benefits without rehearing." (R. 22 at 6.)

On February 13, 2003, I adopted Judge Gorence's recommendation. I concluded that the ALJ ignored important evidence and failed to properly evaluate plaintiff's credibility and to follow the correct procedure for terminating benefits. I agreed with plaintiff that the Commissioner bore the burden of proving medical improvement such that benefits should terminate but rejected his contention that her failure to satisfy such burden required a judicial award. I also found that the record did not compel the conclusion that plaintiff was disabled after May 6, 1997. Finally, I rejected plaintiff's argument that the delays in his case were so unconscionable as to justify a judicial award. Therefore, I remanded the matter for further proceedings pursuant to § 405(g), sentence four.

II. DISCUSSION

A. EAJA Standard

The EAJA requires that attorney's fees be awarded to a prevailing party in a civil action against the United States where (1) the government's position was not "substantially justified," (2) no "special circumstances" make an award unjust, and (3) the fee application is submitted within 30 days of final judgment. 28 U.S.C. § 2412(d)(1); United States v. Hallmark Const. Co., 200 F.3d 1076, 1078-79 (7th Cir.2000).

Because I reversed and remanded the Commissioner's decision under sentence four of § 405(g), plaintiff was the "prevailing party." See Shalala v. Schaefer, 509 U.S. 292, 302, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993). Further, the Commissioner's pre-litigation position (i.e. the ALJ's decision) was not substantially justified.⁴ See Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir.1994) (stating that "fees may be awarded in cases where the government's prelitigation conduct was not substantially justified even though its litigating position may have been substantially justified and vice versa"). And plaintiff's motion is timely.

B. Positions of Parties

The Commissioner argues that plaintiff's fee request should be denied or limited because special circumstances make an award unjust and the amount of the request is unreasonable. The Commissioner notes that almost half of plaintiff's fees were incurred after she filed her motion to remand. She argues that plaintiff achieved no benefit from his opposition to the motion because the court ended up ordering the same remedy she had offered him eight months previously. Therefore, she contends, it would be unfair to shift plaintiff's fees (at least those incurred after the June 26, 2002 motion to remand) to the government. See Williams v. Bowen, No. 85-C-2653, 1987 WL 10559, at *4 (N.D.Ill. May 6, 1987) (finding that special circumstances made an award of fees unjust where the plaintiff turned down the Commissioner's offer to remand for further proceedings); see also 28 U.S.C. § 2412(d)(1)(C) ("The court, in its discretion, may reduce the amount to be awarded pursuant to this subsection, or deny an award, to the extent that the prevailing party ... engaged in conduct which unduly and unreasonably protracted the final resolution of the matter in controversy.").

Plaintiff concedes that his opposition to remand did not result in a judicial award of benefits but argues that he should be awarded fees nonetheless. First, he states that the court denied an award of benefits only by considering the Commissioner's post hoc arguments and evidence unmentioned by the ALJ. Second, he argues that he was justified in opposing remand because the Commissioner's motion and Judge Gorence's recommendation offered him "half a loaf" or less. The Commissioner's motion merely directed the ALJ to re-assess plaintiff's credibility and follow SSR 96-7p. She "presumed" that the ALJ would utilize the proper procedure for cessation of benefits, but neither her motion nor Judge Gorence's recommendation required that any particular procedure be used or addressed who bore the burden of proof on the issue. Plaintiff agues that because he obtained a favorable determination from the court on both issues he deserves a full fee award.

C. Framework for Analyzing EAJA Claims When Commissioner Offers Remand

Where courts grant requests by the Commissioner for remand, they typically apply the following framework to the plaintiff's request for fees under the EAJA.⁵

1. If the Commissioner moves for remand promptly upon the filing of the action, and the plaintiff unreasonably opposes the motion, the court may deny fees entirely. See Williams, 1987 WL 10559, at *3-4.

2. If the Commissioner moves for remand after the plaintiff has filed for summary judgment or otherwise briefed the merits, and the plaintiff agrees to the remand, fees should be awarded for the entire amount of time expended on the litigation. See White v. Apfel, No. 99-C-5323, 2000...