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January 6, 2003


The opinion of the court was delivered by: Leonard B. Sand, United States District Judge


This application for attorney's fees follows over a quarter century of efforts to obtain social security disability benefits on behalf of Leslie Edwards ("Edwards" or "Plaintiff"), a significant portion of which postdates the death of Mr. Edwards himself.*fn1 Although Edwards did eventually obtain a portion of the benefits he sought, the Court denies the fee application.

I. Background

The Court refers those seeking greater familiarity with the factual and procedural history of Edwards's benefit applications to the Report and Recommendation of Magistrate Judge Pitman, adopted in part on August 8, 2002. Nonetheless, because the Report and Recommendation was not published, and in view of the tortured history of this case (or, perhaps more appropriately, these cases), a summary of this history is set forth here.

Leslie Edwards applied for disability benefits on December 27, 1977, claiming that he had been disabled since December 31, 1976. His claim was denied both initially and at the reconsideration stage, and he did not seek further review before an Administrative Law Judge ("ALJ"). Over ten years later, on December 12, 1988, Edwards filed a second benefit application on the basis of the same disability. Again the claim was denied, and although Edwards pursued the decision at the ALJ and Appeals Council stages, he failed to win any benefits. Sometime in early 1991, Edwards retained attorney Carol Goldstein to pursue his claim in this Court under 42 U.S.C. § 405(g). Before the Social Security Administration ("SSA") answered the complaint, however, the parties jointly stipulated to a remand.*fn2 In a "Stipulation and Order of Remand" signed by both parties and filed on June 4, 1991, this Court ordered:

It is hereby stipulated and agreed, by and between the attorneys for the defendant and the plaintiff, that this action be and hereby is remanded to the [SSA] pursuant to 42 U.S.C. § 405(g), for further administrative proceedings.

In an "Order of Discontinuance" filed the next day, the Court further ordered:

The Court having endorsed a stipulation by the parties remanding this matter to the [SSA], the case is hereby closed in this Court, without prejudice to reopening following completion of the administrative proceedings. If such reopening is required, all filing fees are waived.

The Court did not specify any particular source of authority for its remand other than "§ 405(g)."

Several critical and overlapping events followed. First, on September 1, 1991, Edwards retained a new attorney, Irwin Portnoy. Second, on remand the SSA again denied Edwards any benefits; the Appeals Council denied review on July 14, 1994. Third, on January 2, 1993, Leslie Edwards died. Fourth, on March 8, 1993, Edwards received a letter from the SSA informing him that he might be entitled to benefits as a member of the class covered by the settlement in Stieberger v. Sullivan, 801 F. Supp. 1079 (S.D.N.Y. 1992) (Sand, J.), and Portnoy returned the attached notice requesting Stieberger review on Edwards's behalf.

Edwards's case resumed its unusual path through administrative adjudication as two subsequent ALJ determinations that he was not entitled to benefits were vacated by the Appeals Council (once in 1997 because the ALJ had not sufficiently considered certain evidence, and once in 1998 because the audiotape of the hearing was inaudible). Before a third scheduled hearing could take place, Edwards received notice on May 24, 1999, that his application for benefits had been reconsidered under Stieberger, and that he would receive benefits covering the period from December 1987 through January 1993. Because these benefits were the maximum allowable under the 1988 application (commencing one year before the filing of the application and terminating with Edwards's death), the SSA canceled the pending hearing and determined that no further review was necessary. Adopting in large part the Report and Recommendation of Magistrate Judge Pitman, this Court rejected Edwards's subsequent motion to reopen the case.*fn3 On June 11, 1999, Goldstein filed a fee application on her own behalf which the SSA settled for $1250. Portnoy filed the instant fee application on September 6, 2002.*fn4

II. The Equal Access to Justice Act

The Equal Access to Justice Act ("EAJA") provides in pertinent part that:

[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 . . . brought by or against the United States . . ., unless the court finds that the position of the United States was substantially justified or that ...

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