McDade v. Saul

          ORDER REGARDING MOTIONS FOR ATTORNEYS' FEES RE: DKT. NOS. 29, 35

          JOSEPH C. SPERO CHIEF MAGISTRATE JUDGE.

         I. INTRODUCTION

         Plaintiff Daniel Anthony McDade brought this action challenging the decision of the Commissioner of Social Security (the “Commissioner”)^[1] denying his application for disability benefits. The Court previously granted McDade's motion for summary judgment, denied the Commissioner's motion for summary judgment, and remanded the case to the Commissioner with instructions to award McDade benefits. McDade's counsel Lawrence Rohlfing now moves for an award of attorneys' fees from the Commissioner pursuant to the Equal Access to Justice Act (the “EAJA”) and for an order approving fees from McDade's award of benefits pursuant to 42 U.S.C. § 406(b) and McDade's fee agreement with Rohlfing. For the reasons discussed below, both motions are GRANTED in part and DENIED in part.^[2]

         II. BACKGROUND

         After the Commissioner reached a final decision denying McDade's application for disability benefits, McDade filed this action for review by the Court. McDade's attorney at the outset of the case, Steven Rosales, sought and received an extension of six weeks to file McDade's motion for summary judgment due to personal circumstances affecting Rosales's ability to manage his case load. More than a month after the extended deadline had passed and no motion had been filed, the Court issued an order to show cause why the case should not be dismissed for failure to prosecute, allowing the parties two weeks to submit a new briefing schedule. Rather than propose a schedule, Rohlfing-the principal attorney at the firm where Rosales worked- filed a response to the order to show cause and a hastily-dictated motion for summary judgment the day after the Court issued that order.

         In resolving the parties' cross motions for summary judgment, the Court characterized the motion and reply brief filed by McDade's counsel as follows:

The quality of the briefs from McDade's counsel Lawrence D. Rohlfing is unacceptable. Portions of the briefs are incoherent, and there are a number of indications that Rohlfing failed to read the record closely or proofread his own briefs before filing them. For example:

• “McDade files this brief on the grounds that there are no issues of triable fact and that M [sic] is entitled to judgment as a matter of law.” Notice of Mot. (dkt. 15) at 1.

• “McCade [sic [footnote 5]] completed a mental health survey endorsing . . . not being able to use stopper control worrying nearly every day . . . .” Pl.'s Mot. (dkt. 15) at 5.

[Footnote 5: “Across more than two pages of his summary of the medical evidence, Rohlfing misspells his client's name, using ‘McCade' rather than ‘McDade.' Pl.'s Mot. at 5-7. In one instance in the reply brief, Rohlfing refers to his client as ‘McBain.' Reply at 6.”]

• “Resuming medication allowed him to sleep better; had no increased anxiety or panicking feelings with BusPar; and was on vacation.” Id.

• “Jessica land [sic], PsyD, diagnosed date [sic] as having a panic disorder.” Id.

• “On mental status examination, Dr. Littlefield noted and [sic] anxious mood; and affect with mild anxiety; good to fair judgment and insight. Id. rule [sic] out generalized anxiety disorder with a global assessment of functioning of 60. Dr. Littlefield change [sic] the prescription . . . .” Id. at 7.

• “The period from July 2013 through August 2015 remained a temporal span during which McDade wasn't [sic, possibly intended as ‘was in'] self-imposed isolation.” Id. at 12.

• “Assuming McDade did not meet listing 12.06, he would lack the ability to engage in substantial gainful activity is absenteeism would preclude substantial gainful activity.” Id. at 13.

• “Her Littlefield made similar findings.” Id.

• “The Commissioner draws attention to GAF scores of 60 or is Dr. Littlefield identified GAF scores in his medical source statement between 50-55.” Reply (dkt. 25) at 5.

• “Miyzazwa [sic [footnote 6]] may be express [sic] an opinion that McDade lack [sic] the ability to engage in the competitive standards for maintaining ...