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Hayden v. Saul

United States District Court, E.D. Kentucky, Southern Division, Pikeville

October 31, 2019

ANDREW SAUL, Commissioner of Social Security, Defendant, MARSHA F. KIDD, Plaintiff,
ANDREW SAUL, Commissioner of Social Security, Defendant, MARCIA HALL, Plaintiff,
ANDREW SAUL, Commissioner of Social Security, Defendant,



         This matter is pending for consideration of the plaintiffs' motions for attorney fees under the Equal Access to Justice Act, 28 U.S.C. § 2412. The plaintiffs' attorney, Wolodymyr Cybriwsky, filed similar motions in the above-captioned cases approximately one week ago.[1" name="FN1" id= "FN1">1]The motions filed in Hayden and Hall were so egregiously deficient with respect to ECF filing requirements that the Clerk of the Court struck them from the docket. And while the Clerk did not strike the motion in Kidd (which was later denied), counsel tendered a proposed order that included a different plaintiff's name and case number. Counsel's haphazard actions may be a (faulty) strategy for beating the deadline to file such motions in these cases with appropriate supporting materials. So it comes as no surprise that Cybriwsky now seeks to file belated motions and/or remedy deficiencies in his earlier filings.

         Here are the time limitations: A party seeking attorney fees under the EAJA must file his or her application within thirty days of a final judgment in the civil action. 28 U.S.C. § 2412(d)(1)(B). This Court reversed the Commissioner's decision and entered Judgment consistent with Hicks v. Comm'r of Soc. Sec., 909 F.3d 786 (6th Cir. 2018), on July 26, 2019. The deadline for appealing that judgment was September 24, 2019. See Fed. R. App. P. 4(a)(B). Accordingly, the deadline for filing an application for EAJA fees was October 24, 2019.

         Based on the above deadlines, the motions filed in Hayden and Hall are late. Likewise untimely is counsel's attempt to correct and/or bolster the skeletal motions that were filed before expiration of the deadline. Counsel does not provide any basis for equitable tolling. Instead, he reports in Kidd that: “It was only discovered recently and discover [sic] the Court's deficiency notice.” [Record No. 48] However, the Clerk of the Court provided Cybriwsky with electronic notice of these issues on October 25, 2019. Counsel's failure to monitor the email account he has provided for receiving electronic notice is not a good excuse for his belated filings. That being said, these motions would be denied even if they were timely filed.

         The Court has previously considered similar motions in related cases and determines that a response from the defendant is not needed to resolve the issues raised by the plaintiffs. For the reasons explained below, the motions will be denied.[2]


         Once known as “Mr. Social Security, ” former attorney Eric Conn assisted thousands of individuals in obtaining Social Security disability benefits. But Conn's overwhelming success was too good to be true. His results were not the product of skill or hard work. Instead, he obtained benefits for a No. of clients through the largest Social Security fraud in the history of the benefits program.

         The scheme was not that elaborate. Beginning in at least 2004 and continuing through 2011, Conn paid a group of doctors to provide medical and psychological reports, indicating that his clients were unable to work, regardless of their actual abilities.[3] To further ensure his clients' success in obtaining benefits (and his resulting ability to collect a fee), Conn paid Administrative Law Judge (“ALJ”) David Daugherty to assign these cases to himself and then issue favorable rulings.[4]

         The Social Security Administration's (“SSA”) Office of the Inspector General (“OIG”) eventually caught wind of Conn's scheme and began to investigate. On July 2, 2014, the OIG notified the SSA's General Counsel that it had reason to believe that 1, 787 applications submitted by Conn involved fraud. For reasons unknown, the OIG provided this information with the understanding that the SSA would not take any action against these claimants until it received further notice from OIG.

         On May 12, 2015, the OIG notified the Commissioner of Social Security that the Agency could move forward with its administrative processing of the redeterminations of the 1, 787 individuals whose names were previously provided by the OIG to the Agency on July 2, 2014. [See, e.g., Pikeville Civil Action No. 7: 16-051; Record No. 12-1, p. 9.] The OIG specifically advised that it had “reason to believe that Mr. Conn or his firm submitted pre-completed ‘template' Residual Functional Capacity forms purportedly from [the four doctors identified above], dated between January 2007 and May 2011, in support of the individuals' applications for benefits.” Id.

         The SSA sent letters to the affected claimants on May 18, 2015, informing them that it was required to redetermine their eligibility for benefits under 42 U.S.C. §§ 405(u) and 1383(e)(7). The SSA advised them that it was not permitted to consider any evidence submitted by the physicians believed to have been involved in the fraud. The SSA further explained that the Appeals Council had reviewed the affected cases. Many individuals still qualified for benefits after the tainted evidence was excluded. However, the plaintiffs were all informed that, after excluding the evidence from the doctors involved with Conn, there was insufficient evidence to support a finding of disability. The plaintiffs were given time to submit additional evidence to the Appeals Council, demonstrating that they were disabled at the time their applications for benefits were initially approved. And the Appeals Council ultimately determined that there was insufficient evidence to support the prior ALJ's findings of disability.

         The cases were then remanded to new ALJs for redetermination proceedings. The redetermination proceedings included: (1) a hearing before a neutral decisionmaker; (2) an opportunity to testify and submit any evidence that was new, material, and related to the period at issue (other than evidence from the four identified providers); and (3) if requested, assistance developing records that were new, material, and related to the time period at issue. [See, e.g., Pikeville Civil Action No. 7: 16-051; Record No. 12-1, p. 3] At this point, many of the affected claimants were adjudicated disabled and continued receiving benefits. However, in the plaintiffs' cases, the new ALJ found that there was insufficient evidence to support the original disability determination and their benefits were terminated. The Appeals Council declined to reconsider the ALJs' decisions, and the denials became final decisions of the Commissioner.

         Many of the claimants who lost their benefits, including the plaintiffs, filed suit in this Court, claiming that the SSA's redetermination process was unlawful. The cases were randomly assigned to various judges. On October 12, 2016, then-United States District Judge Amul R. Thapar issued an opinion concluding that the SSA's redetermination procedure violated the Due Process Clause of the Fifth Amendment to the United States Constitution. Hicks v. Colvin, 14 F.Supp.3d 627');">214 F.Supp.3d 627 (E.D. Ky. 2016). The undersigned issued a conflicting decision on November 15, 2016, rejecting the plaintiffs' claims that the redetermination procedure violated the Equal Protection and Due Process clauses, the Social Security Act, and the Administrative Procedure Act (“APA”). Carter v. Colvin, 220 F.Supp.3d 789 (E.D. Ky. 2016). Approximately one month later, United States District Judge Joseph M. Hood issued an opinion consistent with that of the undersigned. Perkins v. Colvin, 224 F.Supp.3d 575 (E.D. Ky. 2016).

         The plaintiffs in Carter and Perkins were permitted to take an interlocutory appeal of this Court's decisions in favor of the SSA. Shortly thereafter, the SSA filed a notice of appeal in Hicks. These cases were consolidated in the United States Court of Appeals for the Sixth Circuit, which issued a decision on November 21, 2018.[5] Hicks v. Comm'r of Soc. Sec., 909 F.3d 786 (6th Cir. 2018). A majority of the panel concluded that the SSA's redetermination process violated the plaintiffs' due process rights because it did not disclose the evidence of fraud to the plaintiffs and give them an opportunity to rebut it.[6] Id. at 797. It also determined that the redetermination procedure was arbitrary and capricious and violated the APA's formal-adjudication requirements. Accordingly, the Sixth Circuit reversed this Court's decisions in Carter and Perkins and remanded the cases for further proceedings. In turn, this Court remanded the affected cases to the SSA under sentence four of 42 U.S.C. § 405(g) for redetermination consistent with the Sixth Circuit's ruling.


         Following remand to the SSA, the plaintiffs seek attorney fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412.[7] The EAJA provides, in relevant part:

Except as otherwise specifically provided by statute, 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 the United States was substantially justified or that special circumstances make an award unjust.

         § 2412(d)(1)(A).

         Accordingly, the Court must assess the fee petition in light of the following factors: whether the plaintiff was a prevailing party; whether the government's position was substantially justified; and whether any special circumstances exist that make an award unjust. I.N.S. v. Jean, 154');">496 U.S. 154, 158 (1990); DeLong v. Comm'r of Soc. Sec., 748 F.3d 723, 725 (6th Cir. 2014). In analyzing whether the requested fee is appropriate, the Court takes a “fresh look at the case from an EAJA perspective, and reach a judgment on fees and expenses independent from the ultimate merits decision.” Phillips v. Astrue, No. 2:08-CV-048, 2010 WL 625371 (E.D. Tenn. Feb. 17, 2010) (citing Fed. Election Comm'r v. Rose, 1081');">806 F.2d 1081, 1087-90 (D.C. Cir. 1986)).

         It is undisputed that the plaintiffs are prevailing parties within the meaning of the EAJA. A prevailing party is one who obtains a “material alteration of the legal relationship of the parties” through a “judgment on the merits.” Buckhannon Bd. & Care Home, Inc. v. W.Va. Dep't of Health & Human Res., 532 U.S. 598, 604 (2001). A remand to the SSA under sentence four of 42 U.S.C. § 405(g) satisfies this definition. See Turner v. Comm'r of Soc. Sec., 1');">680 F.3d 721, 723 (6th Cir. 2012) (citing Shalala v. Schaefer, 509 U.S. 292, ...

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