Opinion
CIVIL ACTION NO. 1:08-CV-968-TFM.
December 16, 2010
MEMORANDUM OPINION AND ORDER
Pending before the Court are Plaintiff's Motion for Attorney's Fees (Doc. 21, filed June 13, 2010), Defendant's Response to Plaintiff's Petition for Attorney Fees Under the Equal Access to Justice Act (Doc. 25, filed June 22, 2010), and Plaintiff's Reply (Doc. 27, filed July 20, 2010).
BACKGROUND
Plaintiff Andre Rhynes ("Rhynes") sought judicial review of an administrative decision dated December 21, 2006, wherein the Commissioner of the Social Security Administration ("Commissioner") awarded disability benefits with an effective date of March 15, 2005. Rhynes appealed the decision of the administrative law judge (ALJ) because he believed benefits should have been effective in November of 2003. On March 17, 2010, the Commissioner's decision was reversed and remanded by this Court, and judgment was entered for Rhynes. The Court found that the ALJ who handled Rhynes' case misunderstood certain medical records in his file, and that remand was necessary for reconsideration of the actual date when Rhynes' disability began. Doc. 19.
Rhynes' Motion for fees sought $5,669.49 in attorney fees under the Equal Access to Justice Act (EAJA). The hourly rate for counsel's work, as calculated by Defendant, is $172.85. Defendant's Response objected to any award on the grounds that the Commissioner's position was substantially justified, i.e., reasonable in law and fact. Plaintiff's reply disputed Defendant's interpretation of the EAJA and Social Security Act, arguing that he is indeed entitled to fee award.
DISCUSSION
A party is entitled to fees under the EAJA only if the Government was not "substantially justified" in its actions. 28 U.S.C. § 2412(d)(1)(A). "Substantially justified" has been defined by the Supreme Court as "justified in substance or in the main," or "justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565 (1988). The Commissioner contests Rhynes' fee request by arguing the Government's position was substantially justified, which it differentiates from losing its case. It stresses that "Though Defendant bears the burden of showing that is position was substantially justified, `[t]he fact that the government lost its case does not raise a presumption that the government's position was not substantially justified.'" Lumpkin v. Barnhart, 493 F.Supp.2d 1199, 1202 (S.D. Ala. 2006) (quoting Ashburn v. United States, 740, F.2d 843, 850 (11th Cir. 1984).
The Commissioner offers case examples which provide more concrete examples of how this Court should evaluate its position that fees are not appropriate because its actions were "substantially justified." The cases explain that the Court is obligated to review "both the underlying agency conduct as well as the Commissioner's defense of that conduct." Def. Br. at 3, citing 28 U.S.C. § 2412(d)(2)(D); Comm'r, INS v. Jean, 496 U.S. 154, 161-62 (1990) (explaining that "position of the United States" encompasses agency's prelitigation and litigation positions); Myers v. Sullivan, 916 F.2d 959, 666 n. 5 (11th Cir. 1990). Indeed, the administrative proceedings in this case are particularly relevant to the determination at hand.
The Commissioner concedes the ALJ in this case erred when he mistakenly believed Rhynes underwent biopsies in November, 2003 and July, 2006. This error was the basis for the remand, as the Court's review of the administrative record showed the only biopsy was performed in November, 2003. Doc. 19, at 5. However, the Commissioner argues its determination as to the date of disability was reasonable because it was based on representations by Rhynes' counsel. The Commissioner cites counsel's statement in a second administrative hearing that "[Plaintiff] has one [biopsy] on November the 5th of 2003. He had a subsequent one; it looks like this might have been July 31st of `06." Def. Br. at 5. The Commissioner argues this statement was reasonably relied upon by his representatives. See Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997) ("[W]hen the claimant is represented by counsel at the administrative hearing, the ALJ should ordinarily be entitled to rely on the claimant's counsel to structure and present claimant's case in a way that the claimant's claims are adequately explored."). The Commissioner also argues that counsel's statement cited above invited error, and that Rhynes should not be permitted to argue a contrary position regarding the reliability of counsel's statement that two biopsies were performed.
Rhynes' Reply acknowledges the misstatement of fact which occurred in the administrative hearing. Doc. 27, at 2. However, the Reply provides additional facts which Rhynes believes absolve him from the Commissioner's claim of "reasonable reliance" and "invited error." Rhynes explains that the mistake regarding the number of biopsies was clarified in his brief to the Appeals Council dated January 13, 2008 (attached to Reply as Pl.'s Exhibit 1). The brief notes in bold print that Rhynes had only one liver biopsy in November, 2003, and goes on to explain that the July, 2006 notes regarding a biopsy were in fact an evaluation of the 2003 biopsy. Doc. 27-1, at 3-4. The Appeals Council considered the brief from Rhynes' counsel, and in a letter dated October 8, 2008, explained why it found no cause for reversing the decision of the administrative law judge. R. at 278-81. Though the letter does not specifically reference Rhynes' clarification of biopsy dates, it addresses his residual functional capacity (RFC) as of March 15, 2005 (the date the ALJ awarded benefits). The primary argument advanced by Rhynes for reassessment of his RFC was the significance of the results from that single biopsy in November of 2003.
Rhynes has shown that he corrected his misstatement to the ALJ before the conclusion of administrative proceedings. The Appeals Council is a part of the Social Security Administration's administrative process. See Kennedy v. Bowen, 814 F.2d 1523, 1526 (11th Cir. 1987) (describing the Appeals Council as "the final step in the Social Security Administration's multi-tiered administrative review process."); see also Crawford Co. v. Apfel, 235 F.3d 1298, 1300 (11th Cir. 2000) (explaining that petition for review by Appeals Council exhausts administrative remedies available from the Social Security Administration.) Rhynes' brief to the Appeals Council clarified a misstatement of fact that the Commissioner would otherwise have been able to rely upon for his "reasonableness" argument. The proof that Rhynes' mistake was corrected before administrative proceedings were complete destroys the Commissioner's argument, which is solely based upon administrative reliance on the misstatement. It is not reasonable to continue to rely on a misstatement when the true facts have been clarified. The Commissioner cannot, therefore, argue that his reliance on Rhynes' counsel for the duration of administrative proceedings, and in subsequent litigation, was reasonable.
The Commissioner also argued that other reasons led the ALJ to find Rhynes' disabled as of March 15, 2005, and that any error is harmless if the claimant is not prejudiced. Doc. 25, at 6. The Commissioner does not list, or address how the other reasons support his argument that his litigation position was substantially justified. Rhynes succinctly addressed this argument by stating "[I]t is unreasonable to assume harmless error in an ALJ's misinterpretation of medical evidence that he found determinative in his decision." Doc. 27, at 3-4.
CONCLUSION
For the reasons stated above, the Court finds that a review of the entire administrative process in this case leads it to conclude that the litigative position of the United States was not substantially justified. This finding is reached because the factual error cited as cause for the reasonableness of the Government's position was corrected before the conclusion of administrative proceedings. Having found the litigative stance taken by the Government was not substantially justified, the Plaintiff is entitled to an award of EAJA fees, in the amount of $5,669.49, as requested in his Motion for Attorney's Fees (Doc. 21).Accordingly, it is hereby ORDERED as follows:
(1) That the Plaintiff's Motion (Doc. 21) for an award of fees and expenses under the Equal Access to Justice Act is GRANTED in the total amount of $5,669.49; and
(2) That the award be made payable to Plaintiff's counsel, Georgia H. Ludlum, pursuant to the fee agreement executed by Plaintiff (Doc. 21-1), minus any Department of Treasury offset, via an electronic funds transfer.
DONE this 16th day of December, 2010.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 69 S.Ct. 1221 1225-26 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , 486 U.S. 196, 201, , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) : The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , , , (1949); , 890 F.2d 371, 376 (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).