Court of Appeals Defines Representative's Role

December 18, 2011

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

In a recent EAJA (Equal Access to Justice Act) decision, the Court of Appeals for the Second Circuit admonished a federal magistrate for blaming the claimant’s representative for gaps in the record.  Although the case involves an appeal of an attorney fees award, the underlying issue was whether the attorney for the plaintiff had fulfilled his obligation to present evidence establishing disability.  The Court of Appeals found that he had, and held that the District Court’s reduction of his fee award was not justified.  Vincent v. Commissioner of Social Security, 651 F.3d 299 (2d Cir. 2011).

In the District Court, the Magistrate Judge had agreed that the ALJ had failed to develop the record fully and ruled that the claim should be remanded.  In so doing, however, he noted that the Ms. Vincent’s attorney should have addressed the underdeveloped issues as part of “his ethical obligation to act with reasonable diligence.”  The “missing” evidence pertained to the ALJ’s credibility determination.  It involved a question about an apparent exaggeration of Ms. Vincent’s work history, which could have been the result of a data entry error, and corroboration of her special education history, which had not been obtained partly because SSA had requested it under her married name.  The judge also faulted the representative for failing to submit a brief to the Appeals Council.

When Ms. Vincent’s representative moved for fees under EAJA, the Magistrate reduced the requested award by two-thirds based on purported deficiencies in his role in representing Ms. Vincent at the administrative level.  The Magistrate relied on the “special circumstances” provision of the EAJA statute to justify his decision.  The Court of Appeals acknowledged that the special circumstances exception can be invoked in the context of the adequacy of representation.  It noted, however, that because such reductions could deter representatives’ willingness to appeal Social Security denials, clarity was important.  It concurred that the duty of the ALJ to investigate and  develop the record does not relieve counsel of the duty to provide competent representative, including the obligation to bring to the attention of the ALJ  everything that shows the claimant is disabled.  But it found that in Vincent, the representative had fulfilled his obligation.  In fact, the ALJ had not denied benefits based on lack of evidence but rather on his refusal to credit evidence. Furthermore, the ALJ gave the plaintiff or representative no notice of his credibility concerns at the hearing.

The Court found that as a result, the district court “demanded too much of counsel.”  Counsel should not have “to anticipate and refute all conceivable credibility issues….” His perceived failure to anticipate what were essentially collateral issues to the finding of disability were not “special circumstances” justifying a reduction in his EAJA award.  The Court went on to note that the Magistrate’s requirements were not in “accord with the realities of representation in the Social Security disability context,” specifically citing the limited resources of clients and legal services providers.  [Note that the Empire Justice Center filed an amicus brief in this case, emphasizing the untenable burdens that the Magistrate’s decision would put on legal services providers.]

The Second Circuit also faulted the Magistrate for requiring the representative to file a brief with the Appeals Council.  It cited Sims v. Apfel, 530 U.S. 103, 111 (2000), as well as 20 C.F.R. §404.975 for the proposition that the regulations permit but do not require the filing of a brief with the Appeals Council.  Furthermore, the Supreme Court refused in Sims to impose an exhaustion requirement in non-adversarial proceedings such as Social Security appeals.

Ultimately, the Court of Appeals found that counsel representing Social Security claimants cannot be penalized “for failing to address issues collateral to the disability determination as to which counsel had no notice.”  The responsibility for the gaps in the records in Vincent fell exclusively on the ALJ.  The attorney’s representation was “more than adequate.”

In remanding the EAJA claim for further proceedings, the Court of Appeals noted that this case was the second case in two years involving this Magistrate reducing the same attorney’s fees.  It therefore ordered that the case be transferred to a different judge.

Ms. Vincent was “more than” ably represented in the underlying appeal by Mark Schneider of Plattsburgh, and was represented on the EAJA appeal by Mark Curley of New York City.  As noted above, Empire Justice Center appeared as an amicus.