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Cheryl D. Cudia v. Michael J. Astrue

December 23, 2011

CHERYL D. CUDIA PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

On October 29, 2010, and pursuant to the parties' stipulation, the undersigned remanded plaintiff's social security benefits appeal to the Commissioner of Social Security for further administrative proceedings. (Remand Order, Dkt. No. 30.)

Currently pending before the undersigned is plaintiff's Motion For Attorney's Fees Pursuant To The Equal Access To Justice Act. (Pl.'s Mot. for Fees., Dkt. No. 32.)*fn1

Defendant Michael J. Astrue, Commissioner of the Social Security Administration ("defendant"), filed an opposition to plaintiff's pending motion. (Def.'s Oppo. to Fees Mot., Dkt. No. 34.) Plaintiff filed a Reply in support of her fees motion on November 14, 2010. (Pl.'s Reply to Fees Mot., Dkt. No. 35.)

Because oral argument would not materially aid the resolution of the pending motion (Dkt. No. 33), the matter was previously submitted on the briefs and record without a hearing. Fed. R. Civ. P. 78(b); E. Dist. Local Rule 230(g). The undersigned has fully considered the parties' papers and the record in this case and, for the reasons that follow, the undersigned grants plaintiff's motion.

Plaintiff obtained a remand in this action. Defendant does not argue that defendant's position as to the sole issue prompting the remand was substantially justified. Accordingly, defendant has failed to meet its burden of showing it was "substantially justified" in regards to the issue leading to the remand, and therefore plaintiff is entitled to an award of her reasonable attorneys' fees.

I. BACKGROUND*fn2

A. Plaintiff's First Claim For Benefits And This Action

On November 29, 2004, Cheryl D. Cudia ("plaintiff") filed for Social Security disability benefits under 42 U.S.C. § 401 et. seq. (Federal Old Age, Survivors and Disability Insurance Programs or "DIB") and 42 U.S.C. §§ 1381 et. seq. (Supplemental Security Income for the Aged, Blind and Disabled Programs or "SSI" and together with DIB, the "Act"). (Compl., Dkt. No. 1 at 2.) Plaintiff's alleged disability onset date was November 15, 2004. (Cross-Mot. for Summ. J., Dkt. No. 20-1 at 5.) Plaintiff claimed disability based on back and joint pain, arthritis, kidney problems and depression. (Mot. for Summ. J., Dkt. No. 19 at 6.) Plaintiff had not worked since the alleged onset date, but had previously worked as a home health care provider for several years and, previous to that, worked as a motel maid. (Id. at 14.)

Defendant denied plaintiff's application for disability benefits at the initial level of review and upon reconsideration; plaintiff then requested and was granted a hearing before an Administrative Law Judge (the "ALJ"). (Mot. for Summ. J. at 6.) The ALJ held a hearing in January 2007, wherein he took testimony from plaintiff and her boyfriend. (Cross-Mot. for Summ. J. at 1.) On March 22, 2007, the ALJ issued a decision (the "ALJ's decision") denying benefits to plaintiff. (Administrative Record ("AR") 15-28.)

Plaintiff retained counsel who appealed the ALJ's decision to the Social Security Administration's Appeals Council on May 10, 2007. (AR 10-11.) The Appeals Council denied review in May 2008. (AR 4-7.) On July 21, 2008, plaintiff commenced this civil action against defendant. (Mot. for Summ. J. at 1-2.)

B. Plaintiff's Second Claim For Benefits

On January 7, 2009, while this civil action was pending, plaintiff filed a second claim for disability with the Social Security Administration. (Reply, Dkt. No. 23 at 2-3 (describing plaintiff's "subsequent" application for benefits).)

C. Plaintiff Moves For Summary Judgment

On October 23, 2009, plaintiff filed her Motion for Summary Judgment in this action, arising from her first claim for benefits. (Mot. for Summ. J., Dkt. No. 19.) On November 25, 2009, defendant filed its Cross-Motion for Summary Judgment and Opposition. (Cross-Mot. for Summ. J., Dkt. No. 20.)

D. The Notice Of Award Arising From Plaintiff's Second Claim For Benefits

Amid the parties' summary judgment briefing, the Social Security Administration sent plaintiff a "Notice of Award" dated November 10, 2009 (the "Notice of Award"). (Notice of Award, Dkt. No. 23, Att. A.) The Notice of Award arose from plaintiff's second, "subsequent" claim for benefits. (Reply at 2-3; Pl.'s Reply to Fees Mot., Dkt. No. 35 at 4.) The Notice of Award states both that plaintiff was "disabled" as of "March 23, 2007" and that plaintiff is eligible to receive benefits. (Notice of Award at 1; Reply at 2, 17-19 n.1.) Crucially, the Notice of Award ascribes to plaintiff a disability onset date of just one day after the ALJ denied plaintiff's first application for disability benefits. (Dkt. No. 23 at 2, 17-19 n.1.) Even though these dates are just one day apart, plaintiff was granted benefits in one case and denied benefits in the other. To say the least, the disability onset date stated within the Notice of Award for benefits tends to conflict with the ALJ's findings in connection with plaintiff's first claim for benefits. (Compare Notice of Award, Dkt. No. 23, Att. A (stating a disability onset date of March 23, 2007) with AR 15-28 (ALJ's decision dated March 22, 2007, denying benefits).)

On or about November 30, 2009, after plaintiff filed her Motion for Summary Judgment but before she filed her supporting Reply briefing, plaintiff's attorney learned of the Notice of Award. (Pl.'s Reply to Fees Mot. at 4.) The first time the Notice of Award appears in the record for this action is within plaintiff's Reply supporting her summary judgment motion, filed on January 13, 2010 (the "Reply"). (Reply, Dkt. No. 23.)

E. Plaintiff's Efforts To Obtain A Remand After Learning Of The Notice Of Award

After learning of the Notice of Award, plaintiff made several attempts to obtain a remand based thereon. Plaintiff's Reply indicates that plaintiff's attorney had "called and advised defendant's attorney of [the Notice of Award] and faxed him a copy of the . . . Notice of Award for review." (Reply at 2, n. 1.) Plaintiff's attorney represents that, on November 30, 2009, his time entry reflects that he had a telephone conference with his client and opposing counsel regarding the Notice of Award. (Pl.'s Mot. for Fees, Dkt. No. 32.) In her Reply, plaintiff asks the undersigned to remand the case in light of the Notice of Award and the disability onset date stated therein so as to obtain a "proper analysis of the medical evidence to determine an accurate medically-based onset date of disability" in accordance with Social Security Ruling 83-20. (Reply at 3-4.)

F. The Stipulation And Order To Remand

On September 23, 2010, the undersigned ordered the parties to either stipulate to a remand for further proceedings or, alternatively, to provide supplemental briefing addressing why the matter should not be remanded for further proceedings relating to the determination of plaintiff's disability onset date (the "September 2010 Order"). (Sept. 2010 Order, Dkt. No. 26 at 3.) The September 2010 Order recognized that the March 23, 2007 disability onset date stated within Notice of Award tended to conflict with the ALJ's March 22, 2007 decision prompting this civil action, given that both dates are one day apart yet plaintiff's benefits were granted in one case and denied in the other. (Id.) The September 2010 Order asked the parties whether the district court would be able to fully evaluate the medical record without the illuminating information that subsequent disability proceedings might provide. (Id.) The September 2010 Order also reminded the parties that the date of onset must be medically determined and may not be arbitrarily set. (Id. at 2.)

In response to the September 2010 Order, the parties chose to stipulate to a remand rather than to further litigate this matter. On October 7, 2010, the parties executed a stipulation to remand to the Social Security Administration for further proceedings, and the stipulation became the order of the court. ...


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