Posts Tagged With: Equal Access to Justice Act

How To Win Your Disability Case And Make The Government Pay For Your Attorney


LAURA M. THOMAS, Plaintiff-Appellant, v. MICHAEL J. ASTRUE, Commissioner of Social Security Administration, Defendant-Appellee.

United States Court of Appeals, Tenth Circuit.

Before TYMKOVICH and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit Judge.

This appeal requires us to consider a magistrate judge’s discretion to deny attorney’s fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. After a magistrate judge remanded Laura M. Thomas’s disability claim to the Commissioner of Social Security for further analysis, Ms. Thomas applied for attorney’s fees under the EAJA. The magistrate judge denied her application for fees, Ms. Thomas appealed, and we now affirm.
Ms. Thomas originally applied for disability insurance benefits, claiming she was disabled on October 28, 2004, by deep vein thrombosis and obesity. Her case proceeded to a hearing before an administrative law judge (ALJ), at which a medical expert testified that Ms. Thomas became disabled in May 2007. Without discussing this testimony, the ALJ concluded that Ms. Thomas did indeed become disabled on May 1, 2007, but her insured status had already expired on December 31, 2006. Consequently, the ALJ denied benefits, prompting Ms. Thomas to seek judicial review in the district court.
Ms. Thomas argued for a remand on the ground (among others) that the ALJ improperly evaluated the medical expert’s opinion. She acknowledged that the expert’s opinion concerning her date of onset was predicated on evidence of neurological damage in her lower extremities discovered in 2007. But she argued that there was other evidence documenting neurological changes as early as February 2005, yet the ALJ did not explain why he credited the expert’s opinion over this other evidence. The magistrate judge agreed that the ALJ failed to properly evaluate the medical expert’s opinion, see 20 C.F.R. § 404.1527(f)(2)(ii) (requiring ALJ to evaluate opinion evidence under relevant factors and explain weight accorded to opinion), and he therefore remanded the case to the agency to allow the ALJ to explain the weight accorded to the expert’s opinion.
Having succeeded in obtaining a remand, Ms. Thomas returned to the magistrate judge and requested $5,995.10 in attorney’s fees pursuant to § 2412(d). In her application, she argued that the remand order was a favorable final judgment and the Commissioner’s position was not substantially justified. The Commissioner, for his part, opposed a fee award, asserting that the issues before the magistrate judge “involve[d] a genuine dispute, reasonable people could differ as to the appropriateness of the matter, and the ALJ’s decision was justified `for the most part.'”  The Commissioner explained that the ALJ’s decision was affirmed on all grounds except the medical expert’s opinion, which only required further discussion of the weight assigned; otherwise, the ALJ’s finding of May 1, 2007, as the date of onset was consistent with the expert’s opinion. Hence, the Commissioner maintained that his position was substantially justified and fees should therefore be denied. The magistrate judge agreed with the Commissioner and held that “[t]he government’s position . . . was not only substantially justified, any reasonable person would have viewed it as substantively correct, but technically defective.”
We review the denial of an EAJA claim for abuse of discretion. The EAJA entitles a prevailing party to recover reasonable attorney fees from the government “`unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.'”  “The test for substantial justification in this circuit is one of reasonableness in law and fact.”  In other words, “the government’s position must be justified to a degree that could satisfy a reasonable person,” but it need not necessarily be correct. 
We agree that the government’s position was substantially justified. The dispositive issue for the magistrate judge was whether the ALJ properly evaluated the medical expert’s opinion. The ALJ cited substantial evidence demonstrating that Ms. Thomas’s condition had deteriorated until she was disabled in May 2007, but he did not discuss how (if at all) he weighed the medical expert’s opinion. Although the Commissioner defended the ALJ’s decision, he did so on substantially justifiable grounds, noting that the ALJ was not obligated to find that Ms. Thomas was disabled after her insured status expired. He also emphasized that the ALJ’s finding of disability in May 2007 was consistent with the expert’s opinion, which was itself substantial evidence supporting the ALJ’s decision.
These arguments were rejected by the magistrate judge, but that does not render the government’s position unreasonable. Rather, as the magistrate judge observed, “the record clearly supported the ALJ’s decision so long as the ALJ simply stated the weight he assigned to the medical expert’s opinion.”  Indeed, the magistrate judge “fully anticipated that on remand the ALJ would promptly revise his decision to identify the weight he gave the medical expert without altering his ultimate conclusion that [Ms. Thomas] was not disabled prior to the onset date found by the ALJ.”  These circumstances demonstrate that the magistrate judge acted within his discretion in denying attorney’s fees.
Accordingly, the judgment of the district court is AFFIRMED.
Categories: Social Security Judges | Tags: , , , , , , , , , | Leave a comment

How Much Can My Attorney Charge Me If I Win My Social Security Benefits Case?


DENNIS W. BLACK  v. RICHARD A. CULBERTSON, His Former Attorney and  COMMISSIONER Michael Astrue.


Before EDMONDSON, MARTIN and ANDERSON, Circuit Judges.



Dennis W. Black, proceeding pro se, appeals the district court‘s order granting his lawyer’s petition for authorization to charge Black reasonable attorney’s fees, pursuant to 42 U.S.C. § 406(b). 
Black, represented by his lawyer Richard Culbertson, filed a complaint in the district court, seeking judicial review of the Social Security Commissioner’s final decision denying his application for social security disability insurance (DIB) and supplemental security income (SSI). The district court ruled in Black’s favor, reversing the Commissioner’s final decision and remanding the case for additional proceedings. The court also granted Black’s petition for attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), and directed the Commissioner to pay Culbertson $4,584.02 in attorney’s fees.
After the Commissioner awarded Black past-due benefits on remand, Culbertson filed a petition seeking authorization to charge Black reasonable attorney’s fees under section 406(b) for his representation in the district court. Culbertson attached a contingency fee agreement in which Black agreed to pay Culbertson 25% of his past-due benefits if the district court reversed or remanded the Commissioner’s denial of benefits and if Black was then awarded past-due benefits. The agreement also provided that, if the court awarded attorney’s fees under the EAJA, the amount of the EAJA award would be subtracted from the amount Black owed Culbertson based on his past-due benefits award. In a second amended report and recommendation (“R&R”), the magistrate judge recommended that the court authorize Culbertson to charge Black $25,769.49 in reasonable attorney’s fees, consistent with the terms of the contingency fee agreement. The district court overruled Black’s objections and adopted the magistrate’s second amended R&R.
On appeal, Black argues that the district court erred in granting Culbertson’s petition for authorization to charge reasonable attorney’s fees. We review an award of attorney’s fees for an abuse of discretion.
A district court may award reasonable attorney’s fees as part of its judgment in favor of a Social Security claimant who was represented by a lawyer.  The attorney’s fee may not be more than “25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment,” and the court must determine whether the requested fee is reasonable based on the services rendered. Id. If an attorney receives attorney’s fee under both the EAJA and section 406(b), he must refund the smaller fee to his client, but “may choose to effectuate the refund by deducting the amount of an earlier EAJA award from his subsequent [section] 406(b) fee request.” Id. at 1274.
On remand from the district court, the Commissioner awarded Black a total of $129,672 in past-due Social Security benefits. Pursuant to the contingency fee agreement between Black and Culbertson, Culbertson’s fee for a successful suit would equal 25% of Black’s past-due benefits award ($32,418) minus the amount Culbertson received in EAJA awards (totaling $6,648.51), which amounted to $25,769.49. This fee is consistent with the parties’ agreement and with the statutory limitations. In addition, the district court determined — and Black does not dispute — that this fee was reasonable based on Culbertson’s representation. Thus, we see no abuse of discretion in the district court’s award of attorney’s fees.

Categories: Social Security Cases | Tags: , , , , , , , , , , | 2 Comments

Blog at