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Smith v. Colvin

United States District Court, D. South Dakota, Southern Division

January 21, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



Pending before the Court is Plaintiff, Samantha Smith's motion for attorney fees and costs in this social security case.[1] Plaintiff seeks attorney fees in the amount of $ 11, 159.36 pursuant to the Equal Access to Justice Act (hereafter "EAJA"), 28 U.S.C. § 2412(d), and expenses in the amount of $669.56, representing 6% state and local sales tax on the fee. (Doc. 31.) For the following reasons, the motion will be granted.


In July 2000, Smith filed his first application for disability after a serious work-related injury. AR 93. The application was denied and he did not appeal. Id. In December 2002, Smith filed his second application. After that claim was denied, Smith requested a hearing. An administrative hearing was held in October 2004. On January 20, 2005, Administrative Law Judge (ALJ) Robert Maxwell denied Smith's claim. AR 108. Smith explained that his lawyer, Barbara Dinsmore, since deceased, advised him not to file an appeal but to re-apply for benefits upon his release from prison. AR 450. The decisions on Smith's first two applications for disability benefits therefore became administratively final.

On March 30, 2006, Smith filed his third application for disability benefits, alleging disability beginning March 1, 2000, the date of his work-related injury. The claims were denied initially on June 28, 2006 and upon reconsideration on December 8, 2006. Smith filed a request for hearing and one was held on April 23, 2008 before ALJ Maxwell. AR 18-51. On June 30, 2008, the ALJ issued a decision awarding SSI benefits for a closed period between July 14, 2006 and October 1, 2007, but otherwise denied Smith's claim. AR 15-25.

On August 4, 2008, Smith's attorney requested review of the AU's decision. AR 10. After review was denied, Smith filed a Complaint in this Court on September 13, 2010. See Smith v. Astrue, CIV 10-4131. The Magistrate issued a 35 page Report and Recommendation, recommending remand to the Social Security Administration for further proceedings. The reasons for recommending reversal were:

1. The ALJ failed to consult Mr. Smith's treating physician about when Mr. Smith's degenerative disc disease became disabling, instead substituting the ALJ's own opinion that Mr. Smith's disease did not become disabling until it was documented in a July 2006 MRI.

2. The ALJ failed to consider Mr. Smith's double-vision condition.

3. The ALJ determined Mr. Smith became able to work in October 2007 by failing to apply the Polaski factors consistently to Mr. Smith's testimony about his symptoms and abilities from the time of the March 2000 accident up through the hearing date.

The Magistrate commented on the finality of the decisions on Smith's first two applications for disability benefits:

Because Plaintiff did not appeal the January, 2005 decision, Plaintiffs disability status has been conclusively adjudicated through January 20, 2005 (the date of ALJ's decision on Plaintiffs second claim, which became final when he did not appeal (AR 93-108). See 20 C.F.R §§ 404.957(c)(1); 416.1457(c)(1) (ALJ may decline to consider one or more issues if the doctrine of res judicata applies because the Social Security Administration has made a previous determination or decision about Claimant's rights on the same facts and on the same issue or issues, and this previous determination has become final by either administrative or judicial action).

(CIV 10-4131 Doc. 19.)

Neither party objected to the Report and Recommendation. Agreeing with the errors noted by Magistrate Simko, this Court issued an Opinion and Order adopting the Report and Recommendation. (Id. Doc. 20.) A Judgment dated September 19, 2011, remanded the case pursuant to sentence four, 42 U.S.C. § 405(g). (Id. Doc. 21.)

On remand, ALJ Maxwell held a hearing on August 13, 2012. AR 411-452. He invited Smith to submit additional evidence and a substantial amount of new evidence regarding Smith's disability was received. During the hearing on August 13, 2012, ALJ Maxwell suggested that "the law of the case" required him to find "res judicata up until December 2005." AR 448. On August 22, 2012, Judge Maxwell issued a decision awarding disability benefits from January 21, 2005, forward. The basis given for the beginning date of Smith's benefits was the ALJ's belief that an award of disability benefits before that date was barred by res judicata. AR 405. ALJ Maxwell did no analysis of the applicability of administrative res judicata. Rather, he ...

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