Mark Hamblett, “Circuit Court Criticizes Big Fee Reduction in Disability Case,”New York Law Journal, July 11, 2011
The New York Law Journal writes: “The failure of a Social Security claimant's counsel to develop an administrative record on issues collateral to a disability determination is not a special circumstance that warrants a fee reduction under the Equal Access to Justice Act, a federal appeals court has ruled.
The U.S. Court of Appeals for the Second Circuit on Friday reversed a magistrate judge's decision to slice an attorney's fees by two-thirds.
The decision in Vincent v. Commissioner of Social Security, 10-2437-cv, was made by Judges John M. Walker Jr., Guido Calabresi, and Richard C. Wesley. [Mark] Schneider represented Loretta Vincent on her successful claim for disability benefits based on a work-related back injury that rendered her unable to work beginning in August 2004. . . .
Judge Walker noted that the District Court said Mr. Schneider failed to identify a discrepancy in Ms. Vincent's work history and also should have developed the record to explain why she did not comply with treatment recommendations. ‘The district court demanded too much of counsel,’ Judge Walker said. ‘If we endorsed the district court's position, counsel would have to anticipate and refute all conceivable credibility issues to be assured recovery of attorney's fees after prevailing on appeal. This is not, nor should it be, the bar against which representation in Social Security matters is assessed for purposes of awarding [Equal Access to Justice Act] fees,’ he said.”
