When a Social Security Disability (“SSD”) denial is appealed to federal court, the U.S. Attorney representing the Social Security Administration (the “SSA”) might suggest that the action be remanded to the ALJ, which would be called a voluntary remand. Since I won’t file an SSD appeal in federal court unless I am totally convinced that the Court will rule in my favor, I am usually reluctant to accept a voluntary remand order, especially since the offer is always belatedly made.
When I reject the remand offer, the U.S. Attorney frequently advises me not to expect attorney fees if I win, for the time I work on the case after rejecting the offer. It is unclear if that is truly the U.S. Attorney’s belief, or whether it is the position that their client, the SSA, wants them to assert. Regardless of who is actually responsible for the assertion, it is wrong.
A couple of years ago, I rejected a voluntary remand offer in a case where I represented a former municipal dispatcher. The court eventually remanded the case, and today, the court issued its decision awarding attorney fees. The attorney fee award includes the time that I worked on the case after rejecting the remand offer.
Citing my Harris decision, the court ruled that whether the plaintiff should receive attorney’s fees after refusing an offer of remand depends on whether refusal was reasonable. Whether a plaintiff was reasonable in rejecting the SSA’s offer is determined based on plaintiff’s likelihood of success on the motion, by reviewing the underlying merits of the case. The court noted that the SSA argued, just as he did in Harris and my Pereira decision, that special circumstances warrant a reduction in the fees sought because the court granted the SSA’s motion for remand. However, the court held, “As the courts did in Harris and Pereira, the Court rejects this argument. Mr. Delott did achieve a different remedy and appreciable gains for plaintiff by rejecting the offer of remand.” Among other things, the court said that Plaintiff’s decision to reject the remand offer and to move for judgment on the pleadings was reasonable because the treating physician stated Plaintiff was incapable of full time sedentary work.
The court also rejected the SSA’s argument that I started working on my opposition prematurely. Specifically, the court ruled that, “As the court found in Pereira, it was not ‘unreasonable of counsel to begin preparing motion papers, which are expected as a matter of course in most Social Security cases, before receiving the Commissioner’s motion papers.’” The end result is that the court awarded attorney fees for the entire 54.3 hours of work that was requested.