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Stewart v. Berryhill

United States District Court, D. Massachusetts

October 23, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant


          KATHERINE A. ROBERTSON United States Magistrate Judge.

         I. Introduction

         Now before the court is a motion by Plaintiff Sherri Stewart ("Plaintiff") pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d), for an award of attorney's fees and expenses incurred to obtain retroactive Social Security Disability Insurance ("SSDI") benefits. Plaintiff seeks attorney's fees in the amount of $33, 808.34 for work performed from September 25, 2012 through July 21, 2017. The Acting Commissioner of the Social Security Administration ("Commissioner") opposes the Plaintiff's request. The parties have assented to the court's jurisdiction. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. For the following reasons, the court DENIES Plaintiff's motion for attorney's fees and expenses.

         II. Background

         The protracted history of this case, as set out in Stewart v. Berryhill, Civil Action No. 3:13-cv-30092-KAR, 2017 WL 2435281 (D. Mass. June 5, 2017), is as follows:

On April 10, 2009, Plaintiff applied for SSDI (Dkt. No. 1-3 at 6). She was found not disabled on June 2, 2009 (Dkt. No. 47-7 at 4). However, on November 11, 2010, upon reconsideration, she was determined to have been disabled as of December 2008 and was awarded retroactive benefits from December 2008 to October 2010 (Dkt. No. 1-3 at 6; Dkt. No. 47-7 at 4). On February 18, 2011 and March 23, 2011, the Social Security Administration ("SSA") billed Plaintiff for its alleged overpayment of her retroactive SSDI benefits due to offsets by workers' compensation benefits that she received (Dkt. No. 1-3 at 6).[1] Plaintiff disagreed with the SSA's calculation of the amount of the offset, claimed that she was owed additional retroactive SSDI benefits, and requested a hearing before an Administrative Law Judge ("ALJ") after the SSA denied her request for reconsideration (Dkt. No. 1-3 at 6). On September 7, 2012, Plaintiff and the SSA's Office of Dispute Resolution ("ODAR") agreed on a settlement amount, which they recommended to the ALJ (Dkt. No. 47-7 at 5). On September 25, 2012, accounting for the workers' compensation offset, the ALJ awarded the following retroactive benefits to which Plaintiff and ODAR had agreed: $11, 520 to Plaintiff; $6, 298 to her daughter; and $4, 020 to her son (Dkt. No. 1-3 at 7-8; Dkt. No. 47-7 at 5).
Because the Commissioner did not pay the retroactive SSDI benefits the ALJ awarded, on May 3, 2013, Plaintiff sought mandamus relief in this court (Dkt. No. 1; Dkt. No. 1-3 at 8). In August 2013, a claims authorizer in the Centralized ALJ Group of the Processing Center of the SSA's Office of Centralized Operations reviewed Plaintiff's file in response to her writ of mandamus and determined that the ALJ miscalculated Plaintiff's workers' compensation offset for December 2008 through July 2010 and, thus, the ALJ's decision was erroneous (Dkt. No. 14-1 ¶¶ 3, 5, 6, 7). The claims authorizer referred the case to the Appeals Council by submitting a "protest memorandum" (Dkt. No. 14-1 at ¶ 9). On January 24, 2014, the Appeals Council notified Plaintiff that it had vacated the ALJ's decision and remanded the case to the ALJ for further proceedings, including a new hearing (Dkt. No. 34-3; Dkt. No. 41 at 1). On December 12, 2013, Plaintiff asked this court to issue a temporary restraining order and/or preliminary injunction to prevent the hearing on the ground that the Appeals Council did not have jurisdiction to remand the case to the ALJ (Dkt. No. 23). The Commissioner agreed to stay the ALJ's hearing pending the court's decision on Plaintiff's motion (Dkt. No. 40). On December 30, 2014, Magistrate Judge Kenneth P. Neiman denied Plaintiff's motion for a writ of mandamus based on [a lack of subject matter jurisdiction under 28 U.S.C. § 1331 and] Plaintiff's failure to exhaust the administrative avenues of relief made available when the Appeals Council reopened the case and remanded it to the ALJ (Dkt. No. 41). [Magistrate] Judge Neiman further denied Plaintiff's motion for a temporary restraining order and/or preliminary injunction, closed the case, and remanded it to the ALJ for hearing (id.). See Stewart v. Colvin, Civil Action No. 13-30092-KPN, 2014 WL 7405753, at *1-2 (D. Mass. Dec. 30, 2014), remanded, No. 15-1162 (1st Cir. Jan. 13, 2016). Plaintiff appealed [Magistrate] Judge Neiman's ruling (Dkt. Nos. 42, 45, 46). On January 13, 2016, the First Circuit affirmed [Magistrate] Judge Neiman's decision, concluding that "exhaustion of administrative remedies is required" (Dkt. No. 45).
The ALJ who presided over the first hearing in September 2012 also presided over the second hearing and issued her decision on September 30, 2016 (Dkt. No. 47-7). The ALJ addressed whether: (1) there was an overpayment or underpayment of Plaintiff's and her children's retroactive SSDI benefits considering the workers' compensation offset; (2) there was an error in the settlement terms that were incorporated into her September 25, 2012 decision; and (3) the SSA's protest was timely (Dkt. No. 47-7 at 6). The ALJ determined that Plaintiff was entitled to recover the settlement amount that was included in her September 25, 2012 decision (Dkt. No. 47-7 at 6-12). Consequently, the ALJ found that Plaintiff and her children had been underpaid and awarded the following: $11, 520 to Plaintiff; $6, 298 to her daughter; and $4, 020 to her son (Dkt. No. 47-7 at 11-12). These amounts were to be reduced by the "maximum amount [of attorney's fees] allowed" (Dkt. No. 47-7 at 12).
Because Plaintiff had not received payment on December 28, 2016, she filed another motion for a writ of mandamus (Dkt. No. 47). On February 21, 2017, the Commissioner opposed Plaintiff's motion and moved for dismissal of her complaint based on payment to Plaintiff and her children on or about February 2 and 6, 2017 (Dkt. No. 53-1). Plaintiff agree[d] that so much of her motion as was directed at obtaining payment from the Commissioner [was] moot, but argue[d] that she [was] entitled to attorneys' fees and costs under the EAJA (Dkt. No. 54). The Commissioner dispute[d] this contention (Dkt. No. 57).

Id. at *1-2 (footnote omitted). On June 5, 2017, the undersigned determined that Plaintiff's request for attorney's fees and expenses under the EAJA was premature because "final judgment" had not yet entered, denied Plaintiff's motion for a writ of mandamus, and allowed the Commissioner's motion to dismiss. Id. at *3 (quoting 28 U.S.C. § 2412(d)(1)(B)). Thereafter, Plaintiff moved for fees and expenses (Dkt. No. 66). The Commissioner opposed Plaintiff's motion, Plaintiff responded to the Commissioner's opposition, and the Commissioner replied (Dkt. Nos. 68, 69, 72).

         III. Discussion

         The Commissioner opposes an award of attorney's fees and expenses under the EAJA alleging that: (1) Plaintiff was not a "prevailing party" as that term is used under the EAJA; (2) if Plaintiff is deemed to be a prevailing party, her application for fees is untimely with respect to fees incurred for work performed from September 25, 2012 through December 30, 2014; and (3) Plaintiff's attorney's requested hourly rate of $250 is excessive (Dkt. No. 68). In the court's view, binding precedent compels the conclusion that Plaintiff is not a "prevailing party" as that term has been interpreted. Because Plaintiff did not meet the precondition of being a prevailing party as the EAJA defines that term, see 28 U.S.C. § 2412(d)(1)(A), she cannot recover under the statute. Consequently, the court's discussion is limited to the first of the Commissioner's three objections.

         The EAJA provides in relevant part:

[A] court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of ...

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