author: SPELLMAN, District Judge.

text:
    Harvey D. BANKS v. Margaret M. HECKLER.
    No. 82-2514-CV-SPELLMAN.
    United States District Court, S.D. Florida, Miami Division.
    May 24, 1985.

      Lyle D. Lieberman, Miami, Fla., for plaintiff.
    Michael Burnbaum, Asst. U.S. Atty., Miami, Fla., for defendant.
   FINAL ORDER

SPELLMAN, District Judge.

Upon the Report and Recommendation of a United States Magistrate, and upon an independent review of the file, it is now ORDERED that:

1. The Report and Recommendation are APPROVED, and

2. The Secretary’s Motion to Remand for new hearings is DENIED. Stewart v. Heckler, 599 F.Supp. 298 (S.D.N.Y.1984); Claassen v. Heckler, 600 F.Supp. 1057 (D.Kan.1985), and

3., The Plaintiff’s Motion for Judgment is GRANTED, and the cause is REVERSED, with direction to pay Harvey Banks disability benefits from August, 1981.

REPORT AND RECOMMENDATION

PETER L. NIMKOFF, United States Magistrate.

This is a review of a final decision of the Secretary denying Plaintiff’s claim for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 423. All administrative remedies have been exhausted. Jurisdiction arises under 42 U.S.C. § 405(g).

Now pending is Plaintiff’s motion for judgment. The cause has been referred by the Honorable Eugene Spellman, District Judge, for review and recommendation. For the following reasons, it is RECOMMENDED that the motion be granted, and the decision of the Secretary be reversed.

PROCEDURAL HISTORY

Harvey D. Banks was originally determined “disabled” within the meaning of the Social Security Act on November 16, 1973. On October 10, 1981, he was notified that his disability was considered terminated as of August, 1981. Plaintiff appealed that determination and an administrative hearing was held on May 10, 1982. The Secretary decided the claim adversely to Mr. Banks who then filed suit. The transcript of the administrative hearing could not be produced and the matter was, therefore, remanded for a second administrative hearing. Such hearing was held before the same Administrative Law Judge, Jerome E. Lowen, on February 1, 1984—two and one-half years after the alleged date of cessation.

The second hearing also resulted in a decision adverse to the claimant. The Appeals Council adopted that decision from which Plaintiff now appeals.

STANDARD OF LAW

The pertinent standard to be applied in a disability cessation case is whether, upon comparison of the original medical evidence and the medical evidence at the time of cessation, the claimant has improved to the point of no disability. Vaughn v. Heckler, 727 F.2d 1040 (11th Cir.1984); Simpson v. Schweiker, 691 F.2d 966 (11th Cir.1982).

In the instant case, however, after careful and thorough evaluation of the evidence, it is the conclusion of the undersigned that even without comparison of the prior medical evidence it is plain that Mr. Banks was totally and permanently disabled in and after August of 1981. Thus, it is unnecessary and not in the interest of judicial economy for this Court to recount and discuss the earlier medical evidence.

MEDICAL EVIDENCE

Plaintiff was determined “not disabled” as of August, 1981. The record contains medical evidence and documentation going as far back as 1972. As explained above, the most relevant evidence, for purposes of this review, is that closer in time to the date of termination. Beginning in May of 1981 the record contains numerous reports from an array of doctors.

Dr. James G. Stewart, a neurologist, provided a report in May, 1981 to the state worker’s compensation bureau. He indicated that Mr. Banks was referred to him for a neurological consult at the request of Dr. Allen de Olazarra as a result of total body pain. (R. 222). Mr. Banks, a former fireman, had been injured in 1970 falling off a firetruck and landing on his behind. He was also hit by a 70 lb. fire hose. He had severe pain, disc injury and compression fracture of the lower spine. For medical reasons, Mr. Banks retired in 1974 with complaints of persistent headaches, earaches, dizziness and pain all over his body.

According to Dr. Stewart’s report a laminectomy was performed in 1977 by Dr. Guido who then discovered neurofibromatosis. Dr. Maynard Taylor performed a bilateral rib resection. Mr. Banks was currently complaining of constant pain in his right shoulder and arm, low back, right buttock and leg. He experienced back spasms and his pain greatly increased with any activity at all. Mr. Banks’ headaches occurred about once a week and did not respond to Percodan or Inderal.

Upon examination Mr. Banks had fairly good lateral rotation of the cervical spine with discomfort upon neck extension. Straight leg raising was uncomfortable to any degree on the right, worsening at 80°. It was full on the left. Flexion was also uncomfortable worsening at 80-40°. Vigorous movement of the back or legs caused distress. Pain medication included four Robaxin per day, four Synalgos and one-two Fiorinal III.

Motor examination showed no drift, good strength except in extension of the great toes. Left biceps jerk was diminished to the right. Doctor Stewart concluded that he could make no absolute diagnosis until he received medical records but he gave the following diagnostic impression:

Subjective pattern of total body pain including headache, both arms and legs, worse in the right than in the left, chest, low back and neck with a history of “von Recklinghausen’s disease” apparently documented at surgery, with current findings limited to reflex changes in the left biceps, right knee jerk and some evidence for bona fide weakness of the toe extensors, right greater than left.

(R. 224). There is no subsequent report from Dr. Stewart.

In August of 1981 Mr. Banks was examined by Dr. Peter Millheiser, an orthopaedic surgeon and a consultant for the Social Security Administration. He reported that Mr. Banks had mild restriction of the cervical spine, no motor or sensory loss in the upper extremities (except some patchy hypesthesia on the right), normal grip strength, no spasm. Mr. Banks lacked 30° of flexion and 5° lateral bend of the lumbar spine. Straight leg raising was reported as negative when sitting and distracted; positive at 70° lying down. Gait is normal. X-rays showed mild osteoarthritic changes of the cervical spine. Dr. Millheiser concluded:

Patient has had a cervical sprain in the past. The fracture noted at T12 was not visible on X-ray ... I feel that the patient is able to do light activities. He can lift up to 15 pounds. He should not do any repetitive bending or lifting.

(R. 226). At the hearing Mr. Banks stated that Dr. Millheiser saw him for a total of 3 minutes. The nurse attended him but only to take X-rays.

There is a report-of-contact form dated August, 1981. Dr. Allen de Olazarra reported to the Social Security Administration that Mr. Banks had a diffuse pain pattern involving virtually all areas of the body, more evident in neck, lower back and head. He described Mr. Banks’ pain as “almost constant” and fairly controlled with Synalgos. He described treatment and response as “poor”. (R. 227-230). He indicated that the results of a neurological examination were enclosed but no such report appears in the record.

Medical notes of Dr. Laurence J. Guido, the neurologist who performed surgery on Mr. Banks, are also in the record. They cover the period August, 1977 to November, 1981. In August, 1977 Dr. Guido noted that post surgery, it was his impression that he was not fully certain of the etiology of Mr. Banks’ pain. In October, however, a body delta scan of the cervical and thoracic spines showed a compression fracture of the 6th thoracic vertebrae. The matter was referred to Dr. Russell. A year later Mr. Banks returned with similar complaints of pain and dizziness. In addition, he complained of a numbness in the left face extending through the left arm. Mr. Banks had been seen in a hospital emergency room that morning for pain.

Upon examination, strength was intact, full range of motion in the neck. Facial movement was normal. There was mild paraspinal muscle spasm, greater at the right. Percodan was proscribed and an EEG sought from Dr. Russell. The EEG proved abnormal and a brain scan was indicated.

In December of 1978 Dr. Guido again reports complaints of severe pain by Mr. Banks. The doctor felt that an EMG was warranted and nerve conduction velocities of the upper -extremities. He stated that Mr. Banks had previously been diagnosed as having thoracic outlet syndromes (and had rib resections). He was concerned that there was a disc problem or neuromas. Referral was made to Dr. Marshall Able.

In April, 1979 Mr. Banks had forgotten to see Dr. Able. He reported having headaches—more frequent, more severe, neck and shoulder pain, mid dorsal pain and tight lumbar muscles. Pain behind both knees had recurred and was stronger. He had had to get emergency treatment with Vistaril and Dilaudid at Coral Reef Hospital a few weeks earlier. Currently he was taking Aspirin since Dr. Guido felt that Percodan “would tend to addict him”. (R. 238).

Paraspinal muscle spasm was noted upon examination. Neck extension, according to Mr. Banks, would trigger severe headaches. He could flex his head to his chest and 10 degrees either way. There were no motor abnormalities though there was some loss to pin prick sensation over both upper extremities. Norflex was pre-

scribed.

In September, 1979 results were reported as good with Norflex. Darvocet-N 100 was also prescribed. Some pain and muscle spasm was present.

In October, 1979 Mr. Banks had become nauseated from the Darvocet, was still in considerable pain. Parafon Forte was prescribed and hypnosis recommended for pain.

In December, Mr. Banks reported that the Parafon Forte did not work. Darvoeet was again proscribed. X-rays showed mild spur formation at C4-5 but were otherwise normal. Dr. Guido found some diffuse hypalgesia over the right arm but reported there were no “overt problems at this point.”

In February of 1980 Mr. Banks was seen again by Dr. Guido. He was complaining of pain all over his body with numbness on the left. A pain clinic was recommended.

In November of 1981 Mr. Banks reported constant headaches, neck pain which radiated to the shoulders and arms, bilateral anterior chest pain, low back pain radiating to the legs. No change in status was reported.

Medical notes of Dr. William Russell, Plaintiffs treating neurologist, cover the period April, 1973 to January 1982. In 1975 Dr. Russell diagnosed cervical L5-S radiculitis and headaches secondary to persistent muscle spasm with occipital neuralgia. He felt that Mr. Banks was totally and permanently disabled due to neck and low back pain, weakness of the right leg and upper extremities and headaches. Activity was found to intensify it.

In June of 1977 Mr. Banks was seen again after a two-year lapse. Mr. Banks reported constant, unrelieved pain. A TMS unit proved of little help. Dr. Russell noted:

His pain in the low back is constant, aggravated by bending, coughing, standing and sitting. He does gain some relief by reclining and sleeps on his side with his knees tucked and a pillow between his legs.

(R. 257). Mr. Banks had lost 30-40 pounds, was depressed and taking 3-4 Percodan (plus Tylenol # 3) a day. Mr. Bank’s wife stated that he had greatly worsened and she was fearful he would kill himself. He couldn’t eat, stayed in his room and talked of dying. He wouldn’t see friends and made preparations for death. He would not see a psychiatrist.

Dr. Russell described Mr. Banks as appearing chronically ill, stooped and having prominent muscle spasm. Sciatic tenderness was noted bilaterally and there was a straightening of the lumbar lordosis with mild scoliosis. Straight leg raising was 70° with pain. Lumbar flexion was 45-50° with severe pain. Chronic lumbar discogenic disease was diagnosed as well as chronic musculoligamentous strain. A repeat myelography was sought.

In December, 1977 complaints were the same. In October, 1978, an abnormal EEG was reported. In July, 1980 Dr. Russell reported complaints of pain in the right arm of increased intensity with slight diffuse weakness, pain and weakness in right lower leg with paresthesias, headaches of “blinding” intensity, twitching in the chest, pain lateral to the site of the old compression fracture, numbness in the right toes, occasional numbness of the left thigh.

Upon examination the doctor noted that Mr. Banks exhibited some signs of chronic illness (“somewhat pale”). There was spasm and tenderness over parts of the spine, restricted motion of the head and neck, some decreased response to pinprick in the left leg. The patient stood erect and Romberg’s sign was negative.

Dr. Russell concluded that there were “no current findings suggesting any progressive or focal neurologic lession of a new disorder.” He set as a goal the reduction of pain without narcotics, possibly DMSO.

In November of 1981 Dr. Russell described Mr. Banks’ condition as unchanged. He listed the disorders as (1) multiple neurofibromas involving the left SI and right SI roots, (2) C6 or C7 radiculitis, etiology either discogenic or related to his neurofibromatosis, (3) post-traumatic bilateral compressive brachial plexopathy requiring transaxillary first rib resections, (4) seizure disorder, etiology undetermined, (5) compression fracture of dorsal spine, D6 and (6) headaches secondary to cervical muscle spasm.

Upon examination Dr. Russell noted that Mr. Banks moved with considerable difficulty and complained of headaches and pain. Several small neurofibromas were detected on the right flank. There was prominent spasm of the posterior cervical and shoulder girdle muscles. Range of motion of the head and neck was moderately restricted. Straight leg raising was restricted to 40-50 degrees. Dr. Russell described the patient as depressed and in a great deal of pain. He opined that Plaintiff was totally and permanently disabled.

In response to interrogatories in April 1982, Dr. Russell stated that Mr. Banks’ condition met the Listing of Impairments, Section 1.05 (Disorders of the Spine), subsection (C) as of May, 1970. He stated that Mr. Banks’ complaints of pain were credible and consistent with the medical findings. Mr. Banks could not, in Dr. Russell’s view, perform sustained work.

A follow-up report in November of 1983, reported that Mr.' Banks suffered persistent dizziness and lightheadedness, urinary incontinence and bowel trouble, severe muscle spasm and difficulty sleeping. His examination revealed:

“[PJositive findings ... of muscle spasm involving the posterior cervical and shoulder girdle muscles bilaterally, a little more so on the right and straightening of the lumbar lordosis with lumbar paraspinal muscle spasm, tenderness and positive SLR at 35-40 degrees [bilaterally]. There is sciatic nerve tenderness bilaterally, There is reduction of the right ankle jerk. The remainder of the reflexes are symmetrically hypoactive. There is restricted movement of the head and neck to right and to left which is moderate. Pressure on the cranial vertex accents pain at the base of the skull and in the cervical region.

(R. 284). Medications were Dilantin, Xantac, Elavil and Darvocet-N-100.

Dr. George Hanna, psychiatrist, submitted a report dated January 18, 1984. He indicated that Dr. Russell had referred Mr. Banks to him in June of 1983 because he was “severly depressed and possibly suicidal” due to his physical difficulties. At that time Mr. Banks was suffering from a severe Post Traumatic Major Depressive Disorder. Dr. Hanna had been seeing Mr. Banks twice a week since then and continued to do so. He found little improvement during that time and noted that Mr. Banks felt hopeless about his condition. The doctor failed to discuss Mr. Banks’ mental impairment in any detail but, rather, discussed his physical ailments at length. He stated his opinion that Mr. Banks was a very hurt individual who sincerely desired rehabilitation.

The record also contains a Physical Capacities Evaluation by Dr. Millheiser dated April, 1982. He indicates that Mr. Banks could sit four hours at a time, eight in a day; stand two hours at a time, three in a day; walk two hours at a time, three in a day. He could lift up to ten pounds frequently, 11-20 pounds occasionally, can carry the same. He could do simple grasping, pushing and pulling of hand controls and fine manipulation. He could not climb or reach. Dr. Millheiser felt that Mr. Banks could perform both light and sedentary work on a sustained basis.

At the administrative hearing the ALJ called Dr. Christian Keedy, neurologist, as a medical advisor. Plaintiff’s attorney stipulated to his qualifications and stipulated further that he was “the most outstanding neurosurgeon in Florida.” Dr. Keedy was not present when Mr. Banks’ treating physician testified. Counsel objected to this but the Administrative Law Judge ruled it unnecessary to have Dr. Keedy listen to Dr. Russell.

Dr. Russell testified that he had treated Plaintiff since 1973 and had last examined him in January, 1984. He further stated that Mr. Banks showed no improvement from January, 1979 through 1981 (the year of termination). He found Plaintiffs complaints to be credible and noted that muscle spasms, in particular, cannot be manufactured by a patient. He stated that Plaintiffs physical problems were a visibly determined cause of the symptomatology— pain. The reasons for pain were the multiple neuromas in the back involving nerve roots and the residual effects of surgery— chronic muscle spasms, headaches and restricted movement.

Dr. Russell further indicated that not all pain restricts motion. It is possible to have a full range of motion and still experience pain.

In 1980 and 1981 Dr. Russell prescribed Linditrol, a muscle relaxant anti-depressant and Zomax, an anti-inflammatory analgesic. Zomax, he stated, is an alternative to narcotic medications. Prior to that, Mr. Banks had taken Inderal, Tylenol III and others.

Dr. Russell indicated that Plaintiffs problem was primarily neurological and not orthopedic. Plaintiffs counsel questioned the doctor regarding Dr. Millheiser’s report wherein Dr. Millheiser noted that Mr. Banks had no muscle spasm. Dr. Russell took issue with that report stating that he had never seen Mr. Banks without finding muscle spasm. He said “I hardly see how you can put a hand on his back or his neck and not find it.” (R. 60-61).

Dr. Russell further stated that for the period of August, 1981 and immediately prior thereto, Mr. Banks could sit a maximum of two hours with frequent rests, stand one hour with frequent rests in an eight-hour day. He stated that this assessment had not changed. Also, he indicated that Mr. Banks could lift 10 pounds only on occasion, e.g., pouring milk.

Dr. Keedy then testified as a medical advisor. Based on the records, he stated that Mr. Banks had neurofibromas as revealed by surgery and had had rib resections which “modified his symptoms to some degree, but really didn’t relieve the continued complaints of pain in his back and in his arms.” (R. 68). On an objective basis, Dr. Keedy noted, Plaintiff really did not have a great deal of disability that could be assessed. Movement of the lower extremities was intact. There was little sensory disturbance, muscle tightness in the neck and lower back and limitation of motion of the head due to pain.

With respect to Mr. Banks’ loss of function, Dr. Keedy felt that this was a matter of individual assessment. The Administrative Law Judge referred to Dr. Millheiser’s report in particular and asked Dr. Keedy if there was anything in that report which would lead him to conclude there was a degree of disability. Dr. Keedy stated that the report revealed neuromas, surgery and complaints of pain which “would make one feel that certain activities would be painful and be limiting.” However, he agreed, on the basis of Dr. Millheiser’s report with Dr. Millheiser’s conclusion, i.e., Mr. Banks could do light work.

Dr. Keedy then read Dr. Russell’s report of July 18, 1980 and stated:

[Mr. Banks] is complaining of multiple areas of pain, but fundamentally, the headaches of which he complains, the neck pains of which he complains and the—pain in upper extremities would all be associated with the residual of his thoracic outlet syndrome. The pain that he complains of in his—in his dorsal region of his back where he shows x-ray evidence of having compression fracture, if of an unusual description. And it makes one think that when I may have some discomfort there, that it is magnified by his basic personality structure of being more sensitive and has more mental response to pain than one ordinarily would have in an old condition of long standing. The pain of which he complains of in his lower extremitity is reason to believe that one that has had a back operation and was bound to have neuromada of the S-l nerve root would be significantly suffering with pain. So that I think that these claims are verified by his physical condition, even though some individuals might be able to overcome this somewhat more than he does.

Dr. Keedy stated further that Mr. Banks’ current medication—Darvocet and Nor-flex—were relatively mild pain relievers. He continued that physicians can be reluctant to use strong medications in chronic pain cases due to possible addiction and the probable raising of the pain threshold level.

Dr. Keedy stated, in response to questions from the Administrative Law Judge that Plaintiff could not sit or stand long enough to perform light work. He stated that Plaintiff could lift ten pounds and sit if able to periodically change position. Upon questioning from the Administrative Law Judge, Dr. Keedy felt that the degree of Mr. Banks’ pain would not preclude sedentary work.

Upon questioning by Plaintiff’s attorney, Dr. Keedy indicated that the absence of muscle spasm or the presence of a full range of motion does not mean that a subject has no pain. He said each individual must be evaluated separately for pain. Dr. Keedy agreed with Dr. Russell’s diagnosis and agreed that there was clearly a medical basis for Mr. Banks’ complaint of pain. Dr. Keedy made it plain that the long term treating physician was in the best position to evaluate residual functional capacity particularly as against one who had never seen the patient (i.e., himself).

The Administrative Law Judge stated, at one point, that Mr. Banks had “credible pain” and was “significantly disabled”. He later stated that “if I find that his pain is credible to the extent that he will testify to in a little while, then the man is clearly disabled.” (R. 89).

Dr. Keedy continued to testify that the severity of pain is relative to a person’s tolerance. He agreed that if Mr. Banks couldn’t tolerate his pain he could not even do sedentary work. The doctor also stated that if Mr. Banks had been taking narcotics then this might indicate that his pain was more severe than it now appeared.

Mr. Banks testified also. He stated that he was 44 years old and has a GED. In August of 1981, he weighed 125 pounds and suffered from the same problems he suffers now: severe headaches with sharp, shooting pain, tightness and pounding, muscle spasms in the neck, shoulder and back, radiating pain and inflammation, pain in the low back radiating to the legs and from the tailbone to the scrotum, dizziness, memory problems, mental confusion and fatigue. Mr. Banks also stated that he has chronic sleeping problems, constipation and diarrhea and bladder difficulty. Mr. Banks was seeing Dr. de Olazarra in August, 1981 and Dr. Russell. Mr. Banks testified that in August of 1981, he could not stand, walk or sit any longer than he can now. He could not bend without difficulty. Sometimes he was unable to take care of his personal needs. He spent a lot of time in bed as he does now, getting heat treatments prescribed by Dr. Russell.

Mr. Banks said his condition has worsened. He also stated that he had been getting up many times during the hearing due to pain.

In 1980 and 1981 Mr. Banks stated he had gone to at least three emergency rooms due to extreme pain. The Administrative Law Judge desired documentation of this (which was not presented).

Mr. Banks testified that his wife and daughter do all household chores. He stated that the only drugs that had helped the pain were Dilaudid and Percodan. He was taken off Percodan for fear of addiction. The Zomax was of no help.

Mrs. Banks also testified at the hearing. She corroborated her husband’s testimony and further indicated that he is extremely fatigued so that he frequently goes to bed. She indicated that he had not improved since 1974 and that he can’t even go anywhere or do the slightest things. She stated that her husband has never, since 1974, experienced a day without pain.

ADMINISTRATIVE DECISION

In his decision denying benefits, the Administrative Law Judge found that Mr. Banks possessed only two impairments: headaches and cervical and lumbar pain syndrome. He apparently ignored the other diagnoses which even the medical advis- or ascribed—multiple neurofibromas, bilateral compressive brachial plexopathy. He also failed to consider depressive reaction. He found that beginning in August, 1981 Mr. Banks’ RFC improved to the point where he could perform sedentary work. He then applied the Medical-Vocational Guidelines, Rule 201.28 to conclude that Plaintiff was not disabled.

In support of his decision, the Administrative Law Judge pointed to the report of Dr. Millheiser to support a conclusion that Plaintiff could do sedentary work. He made no reference at all to the testimony of Dr. Keedy. With respect to Mr. Banks’ complaints and pains, the Administrative Law Judge stated:

“[T]he Administrative Law Judge finds that the claimant’s allegations of pain are credible, but not to an extent that they preclude him from basic work activities ____ Dr. Millheiser ... determined the claimant has the capacity to sit for eight hours during an eight hour working day, and can stand and walk part of the day. Although there are opinions from Dr. Russell to the contrary, and although the Administrative Law Judge realizes that Dr. Russell has seen the claimant on a regular basis, Dr. Russell’s opinions do not take into effect the claimant’s residual functional capacity based upon medical findings ... Dr. Russell noted the claimant’s complaints, but did not pinpoint the basis for the multiplicity of complaints about pain____ Dr. Millheiser took the pain into effect when he rendered his physical capacities evaluation. Extensive testing has been done with respect to claimant’s allegations of pain ... The medical evidence does not substantiate a find [sic] that these pains in and of themselves are totally disabling. Also, although the claimant has some spurring and other deformities on x-ray examinations, these do not singly or in a combination lead to a conclusion that the claimant is entirely preoccupied by pain. Such a conclusion is corroborated by the observations the Administrative Law Judge made at the hearing. The claimant was appropriately dressed and he entered and left the hearing room without apparent difficulty. The claimant testified that he has a driver’s license and____ and drives his car one or two times a week. He said that on one occasion he went to the store to buy a ten pound bag of puppy chow, and he bought it, took it to his car and bought [sic] it home with him. The claimant certainly exaggerated when he told the Administrative Law Judge he could sit for only ten minutes____ The hearing ... lasted approximately 3 times that ...

(R. 36-37).

RECOMMENDATION

After thorough examination of the record in this cause and careful scrutiny of the Secretary’s final decision it is recommended that the decision of the Secretary be reversed as unsupported by substantial evidence.

It is well settled in the Fifth and Eleventh Circuits that pain alone can be disabling even when its existence is unsupported by objective medical evidence provided that it is linked to a medically determinable impairment. Wiggins v. Schweiker, 679 F.2d 1387, 1390 (11th Cir.1982). Simpson v. Schweiker, 691 F.2d 966, 970 (11th Cir.1982); Scharlow v. Schweiker, 655 F.2d 645, 648 (5th Cir.1981).

There is simply no substantial evidence to support the Administrative Law Judge’s decision that Plaintiff’s pain is not disabling, i.e., not severe, persistent or intractable. Courts in the Eleventh Circuit have pointed to a number of factors which are relevant to a determination of the disabling nature of subjective complaints: (1) whether the complaints are consistent over time and made outside of the claim for benefits, Simmons v. Harris, 602 F.2d 1233, 1236 (5th Cir.1979); see also Lynn v. Schweiker, 565 F.Supp. 265, 268 (S.D.Tex.1983); (2) whether the complaints are corroborated by family members or other witnesses, Arnold v. Heckler, 732 F.2d 881, 884 (11th Cir.1984); Scharlow, 655 F.2d at 645; (3) whether those closest to the claimant believe the complaints to be sincere, Simpson, 691 F.2d at 970; (4) whether the claimant seeks treatment for pain, Arnold, 732 F.2d at 884; (5) whether an examining physician or psychiatrist offers an opinion regarding pain, Id. (noting that no doctor had offered the opinion that claimant’s pain was disabling and noting that doctors commented on exaggerated nature of complaints); see also, Jerabek v. Heckler, 734 F.2d 726, 727 (11th Cir.1984); (6) whether— and to what degree—a claimant believes he or she can perform work related functions, Reeves v. Heckler, 734 F.2d 519, 524 (11th Cir.1984); (7) whether treatment for pain is aggressive or requires the use of narcotics, Falcon v. Heckler, 732 F.2d 827, 832 (11th Cir.1984); Harwell v. Heckler, 735 F.2d 1292, 1293 (11th Cir.1984); (8) whether daily activities are consistent with severe pain, Harwell, 735 F.2d at 1293. In the instant ease, each one of the above factors, upon examination, supports a finding of severe, intractable pain. Over a significant period of time, Plaintiff complained of the same symptomatology to a host of doctors. He did so whether or not the examination was for social security purposes. Not a single doctor suggested that Mr. Banks exaggerated or was a malingerer. Indeed, each physician who treated Plaintiff did so on the apparent assumption of the truthfulness of his complaints. Mr. Banks’ psychiatrist offered his view that the claimant was very sincere in his complaints. Mr. Banks’ wife corroborated his testimony and stated that he has never had a day without pain. She discussed his very limited activities and his constant, severe fatigue. Mr. Banks’ primary treating physician testified at the hearing that Mr. Banks’ pain was disabling and he submitted well documented reports of claimant’s clinical findings and impairments. Dr. Guido had performed surgery and further surgery had been recommended by Dr. Auld, though Plaintiff declined such in view of the risk. (R. 110). Narcotics had been used to treat Mr. Banks during the relevant time and when narcotics were not used the reason was not that the pain was less than severe but rather that narcotics are addicting and can lower the pain threshold. Thus, treatment of Mr. Banks’ pain was aggressive.

Mr. Banks testified as to his belief that he could not work. He also testified in depth and graphically regarding his pain. Both his treating physician, and the medical advisor called by the Social Security Administration stated that his subjective complaints were consistent with the diagnosis and clinical findings. There were also repeated objective signs of pain; limited motion, positive straight leg raising, weight loss, muscle spasms.

Contrary to the Administrative Law Judge’s conclusions, Mr. Banks’ daily activities do not support a finding of no severe pain. Driving a car twice a week, sleeping most of the day and carrying a bag of dog food do not evidence the absence of severe pain. Clearly these limited activities are a drastic departure from routine daily functions.

Additional reasons further suggest that the A.L.J.’s decision regarding pain was erroneous. The A.L.J. felt that Mr. Banks’ complaints were credible only to a point. He noted that Mr. Banks had said he could sit only for ten (10) minutes but that he sat through a thirty (30) minute hearing with “no problems.” The transcript of the hearing, however, is devoid to any claim by Mr. Banks that he could sit no more than ten minutes. The Transcript includes an interchange between counsel and claimant which establishes that Mr. Banks had gotten up several times during the hearing due to pain. (R. 110). The A.L.J. noted that claimant could take care of his personal needs; Mr. Banks had testified, however, that he could do so only “sometimes”. (R. 106).

In addition the A.L.J. also applied a “sit and squirm” index in his evaluation of Plaintiff’s pain. See e.g. Freeman v. Schweiker, 681 F.2d 727 (11th Cir.1982). He noted that Plaintiff was appropriately-dressed and was in no “apparent distress”. Such an assessment of the degree of claimant’s pain is impermissible. As stated in Freeman,

In [the “sit and squirm”] approach, an Administrative Law Judge who is not a medical expert will subjectively arrive at an index of traits which he expects the claimant to manifest at the hearing. If the claimant falls short of the index, the claim is denied. As the court observed in Tyler [v. Weinberger, 409 F.Supp. 776, 789 (E.D.Va.1976) ] this approach will not only result in unreliable conclusions when observing claimants with honest intentions, but may encourage claimants to manufacture observable manifestations of pain or, worse yet, discourage them from exercising the right to appear before an Administrative Law Judge for fear that they may not appear to the unexpert eye to be as bad as they feel.

681 F.2d at 731.

Finally, the A.L.J. rejected the opinion of the long-term treating physician, Dr. Russell, in favor of the opinion of a one-shot examiner for the Social Security Administration, Dr. Millheiser. He did so despite an express statement from his own medical advisor that Dr. Russell would be the doctor better equipped to evaluate Plaintiff’s disability.

Unless good cause is shown to the contrary, the A.L.J. must accord substantial weight to the opinion of the treating physician. Wiggins, 679 F.2d at 1389. In the instant case, the A.L.J. discredited Dr. Russell’s opinions because they “do not take into effect the claimant’s residual functional capacity based upon medical findings.” He also states that Dr. Russell “did not pinpoint the basis for the multiplicity of complaints about pain.” Dr. Millheiser, on the other hand (according to the A.L.J.) “took the pain into effect when he rendered his physical capacities evaluation.” (R. 36).

The A.L.J.’s stated reasons for accepting Millheiser’s opinion and rejecting Dr. Russell’s do not bear scrutiny. First, Dr. Millheiser did not make a single statement about the degree of Mr. Banks’ pain and its effect on work-related activities. (See R. 225-226). Second, Dr. Russell carefully pointed out the precise diagnosis which formed a medical basis for pain. The Social Security Administration medical advisor agreed that Mr. Banks’ symptoms and stated complaints were completely consistent with those diagnosed. He also noted that Dr. Russell was in the better position to evaluate pain and that pain is a subjective matter, thus one person’s tolerance may be very different from another s. Finally, it is readily apparent that Dr. Russell’s opinions did take the medical findings into effect in evaluating the RFC.

For all the foregoing reasons, it is Recommended that the decision of the Secretary be reversed, with a finding of disability. Thus, the Secretary should be ordered to reinstate benefits immediately as well as to restore all retroactive benefits due.

After the Court had completed its work on this case, the Secretary filed a motion to remand pursuant to the Social Security Disability Benefits Reform Act of 1984, Pub.L. 98-460 which became law on October 9, 1984. Section 2(d)(2)(C) of that Act provides that all cases seeking judicial review pending on September 19, 1984 which “relat[e] to medical improvement” are to be remanded to the Secretary for consideration under the new standards enunciated in the Act. This ease is clearly one “relating to medical improvement.” (See Brief In Support of Plaintiff’s Claim at 18).

Under the new Act, disability benefits are not to be terminated unless substantial evidence shows (1) there has been medical improvement permitting the recipient to now engage in gainful activity; (2) the recipient has not improved but as a result of medical or therapeutic advances he is able to engage in gainful activity; (3) new medical techniques show the individual is not as disabled as he was thought to be at the time of decision; and (4) the original decision was in error. Section 2.

Examining the standards of the new Act, it is apparent that no remand under that Act is warranted. First, the Court has recommended reversal on an entirely separate ground than that of failure to apply the “medical improvement” standard. As the District Court stated in Stewart v. Heckler, 599 F.Supp. 298 (S.D.N.Y.1984);

[I]t would not be a rational construction of the new law to require a remand in a case where it is clear that benefits must be restored regardless of what findings may or may not be made on remand with respect to plaintiff’s medical improvement. Certainly nothing in the legislative history of the amendment suggests that remand is required even in cases where any decision with respect to medical improvement will have no impact on plaintiff’s right to receive benefits. Indeed, that legislative history, if anything, suggests quite the contrary.

Id. at 300.

Second, nothing in the Act changes any aspect of the law as applied in Plaintiff’s case. Indeed, if anything, the new law is arguably more liberal in Plaintiff’s favor. It would, therefore, serve no useful purpose to remand this case. Moreover, the extensive delay in this case—occasioned by the Secretary’s loss of the transcript—warrants a final determination where Plaintiff is so obviously disabled. See, Claassen v. Heckler, 600 F.Supp. 1507 (D.Kan.1985).

For all the foregoing reasons, it is therefore RECOMMENDED that the decision of the Secretary be REVERSED, with direction to pay benefits from August, 1981.

Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation with the Honorable Eugene P. Spellman, United States District Judge, within ten (10) days after being served with a copy thereof.

      . At this time Dr. Christian Keedy, the Medical Advisor called by the Social Security Administration, was associated with Dr. Guido.

      . Plaintiff had suffered a seizure during a hospitalization.

      . Later, Dr. Keedy stated that Plaintiff could do sedentary work if he "didn’t have to do any lifting.” (R. 88)


source: Caselaw Access Project

author: GETZENDANNER, District Judge:

license: Public Domain

text:
    In re OLYMPIA BREWING COMPANY SECURITIES LITIGATION.
    No. 77 C 1206.
    United States District Court, N.D. Illinois, E.D.
    May 30, 1985.

      Edward T. Joyce, Steven J. Rotunno, Joyce & Kubasiak, P.C., Chicago, III, for plaintiff.
    Howard R. Koven, Steven L. Bashwiner, H. Nicholas Berberian, Howard D. Lieberman, Julie P. Shelton, Therese M. Obringer, Mark T. Carberry, Friedman & Koven, Chicago, 111., for defendant.
   MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

Before the court is the motion in limine of plaintiff Louis P. Singer, of former civil action 81 C 3699. In his motion, Singer moves the court to exclude at trial all evidence of or reference to Singer’s alleged negligence. The court has determined that no response by defendants is necessary. For the reasons stated below, the motion is granted in part.

Singer’s Final Amended Complaint contains several counts alleging intentional and negligent wrongdoing by defendants Loeb Rhoades & Co., Inc. and Loeb Rhoades & Co. (“Loeb Rhoades”) under the federal securities and racketeering laws. To the extent Singer claims violations of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), it is clear that Singer’s negligence or lack of due diligence in purchasing the securities leading to his injury is irrelevant to his ability to recover damages. The Seventh Circuit has clearly ruled that lack of due diligence is not a defense to a violation of § 10(b). Sundstrand Corp. v. Sun Chemical Corp., 553 F.2d 1033, 1048 (7th Cir.), cert. denied, 434 U.S. 875, 98 S.Ct. 224, 54 L.Ed.2d 155 (1977); Goodman v. Epstein, 582 F.2d 388, 405 (7th Cir.1978), cert. denied, 440 U.S. 939, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979); Teamsters Local 282 Pension Fund v. Angelos, 762 F.2d 522, 528-530 (7th Cir.1985). Hence, Singer’s motion to exclude evidence of negligence with respect to these claims is granted. If a private claim exists under Section 17(a) of the Securities Act of 1933, 15 U.S.C. 77q(a) —according to the Seventh Circuit an open question, see Teamsters Local 282, at 530 —it would likely require scienter. See Peoria Union Stock Yards Co. v. Penn Mutual Life Insurance Co., 698 F.2d 320, 323-24 (7th Cir.1983). Under the analysis of Sunstrand and Teamsters Local 282, then, plaintiff’s lack of due diligence would not defeat a claim under that statute either. Therefore, Loeb Rhoades cannot introduce evidence or propound questions referring to mere negligence on Singer’s part in making the injurious purchases.

In rejecting the affirmative defense of plaintiff’s lack of due diligence, Sundstrand noted that “[i]f contributory fault of plaintiff is to cancel out wanton or intentional fraud, it ought to be gross conduct somewhat comparable to that of defendant.” 553 F.2d at 1048 (quoting from Holdsworth v. Strong, 545 F.2d 687, 693 (10th Cir.1976) (en banc)). Loeb Rhoades contends that Singer’s purchasing activities fall into this exception. On the other hand, Singer argues that they at most constitute negligence, concluding that no reference to his negligence may be made.

Assuming that a plaintiff’s gross failure of diligence may bar a recovery under § 10(b), a question which is not decided by Sundstrand, a decision on whether Singer’s actions constituted “gross conduct ... comparable to that of defendant” cannot be made at this point. The court is familiar with Loeb Rhoades’ evidence of Singer’s alleged gross conduct. While it seems unlikely that Loeb Rhoades will prevail in so characterizing Singer’s conduct, the factual record is not sufficient at this point to justify a ruling on this question. Rather, before attempting questioning or introduction of evidence concerning Singer’s alleged gross conduct, Loeb Rhoades should make an offer of proof on the conduct it seeks to establish. The court will at that point rule on the relevance of the questions or evidence.

Singer also alleges injuries resulting from Loeb Rhoades’ violations of Section 12(2) of the Securities Act of 1933, 15 U.S.C. §771 (2). Section 12(2) allows an injured purchaser to sue a person who sells or offers a security by means of a prospectus or oral communication containing material untruths or omissions. Under specific statutory language, the seller has the burden of showing that he or she “did not know, and in the exercise of reasonable care could not have known, of such untruth or omission____” Regarding the purchaser, the statute refers only to “the purchaser not knowing of such untruth or omission.”

The parties agree, and the statutory language is clear, that § 12(2) creates a private claim for negligent, as well as intentional or reckless, untruths or omissions. The question before the court is whether Singer’s alleged lack of due diligence in purchasing the subject securities may be a defense to a negligence claim under § 12(2). Cases and commentators almost unanimously conclude that any such lack of diligence by plaintiff is not a defense to a § 12(2) action.

The Seventh Circuit in Sanders v. John Nuveen & Co., Inc., 619 F.2d 1222, 1229 (7th Cir.1980), cert. denied, 450 U.S. 1005, 101 S.Ct. 1719, 68 L.Ed.2d 210 (1981), explained:

Section 12(2) does not establish a graduated scale of duty depending upon the sophistication and access to information of the customer. [Citation omitted.] A plaintiff under § 12(2) is not required to prove due diligence. See, e.g., Gilbert v. Nixon, 429 F.2d 348, 356 (10th Cir.1970). All that is required is ignorance of the truth or omission.

See Junker v. Crory, 650 F.2d 1349, 1361 (5th Cir.1981) (citing Sanders for the proposition that a § 12(2) plaintiff “need not prove due diligence”); Hill York Corporation v. American International Franchises, Inc., 448 F.2d 680, 696 (5th Cir.1971) (“The plaintiffs do not have to prove that they could not have discovered the falsity upon reasonable investigation.”); Alton Box Board Company v. Goldman, Sachs and Company, 560 F.2d 916, 919 n. 3 (8th Cir.1977) (§ 12(2) plaintiff did not have “any duty to investigate beyond its own general knowledge at the time of the purchase”); Aronson v. TPO Inc., 410 F.Supp. 1375, 1379 (S.D.N.Y.1976). See also 3 A. Bromberg & L. Lowenfels, Securities Fraud & Commodities Fraud ¶ 8.4(317) (1984); H. Bloomenthal, Securities Law Handbook 233 (1984) (plaintiff’s lack of due diligence or contributory negligence not a defense to § 12(2) claim).

The conclusions of these cases and commentators may at first seem at odds with case law suggesting that a plaintiff’s lack of due diligence or contributory negligence should be a defense to a negligence claim. For example, the Sundstrand Court notes that “[u]nder a negligence standard of liability, plaintiff could not justifiably claim reliance if he had not exercised due diligence.” 553 F.2d at 1048. See Teamsters Local 282, 762 F.2d at 528-529 (quoting this passage from Sundstrand). The Holdsworth decision, on which the Sundstrand Court relied in ruling that plaintiff’s lack of diligence is not a defense in a § 10(b) action, discussed at length the distinction between intentional and negligent torts in determining the appropriateness of a defense based on plaintiff’s lack of reasonable care or inquiry. 545 F.2d at 692-94.

The court is persuaded, however, that the Sanders ruling, as opposed to the dictum in Sundstrand and Teamsters Local 282, is correct. First, it should be noted that Sundstrand and Teamsters Local 282 suggest that reliance in a negligence case is vitiated by lack of due diligence. However, plaintiff’s reliance is not an element of a prima facie case under § 12(2). Sanders, 619 F.2d at 1225-26; DeMarco v. Edens, 390 F.2d 836, 841 (2d Cir.1968). Hence, cases discussing defenses to a § 12(2) actions are distinguishable from the discussion in Sundstrand and Teamsters Local 282 regarding claims in which reliance is an element.

More importantly, the statutory language of § 12(2) clearly indicates that plaintiff must not have known of the untruth or omission, while putting the burden on defendant to show that it did not know or with reasonable care could not have known of the untruth or omission. This tends to establish that the drafters did not intend to require reasonable inquiry by the purchaser. This conclusion is strengthened by § 13 of the 1933 Act, 15 U.S.C. § 77m, which prescribes the limitations period applicable to § 12(2). There, plaintiff’s claim must be brought within one year after the discovery of the untruth or omission, or after such discovery should have been made through the exercise of “reasonable diligence” by plaintiff. While due diligence is incorporated in the section prescribing the limitations period, it is absent in the section creating liability. See 3 A. Bromberg & L. Lowenfels, supra, at 204.14. To the extent that some cases suggest a duty of diligence by plaintiff exists under § 12(2), see Gilbert v. Nixon, 429 F.2d 348, 356 (10th Cir.1970) (holding that plaintiff’s “excusable ignorance” an element of § 12(2) action directly succeeded by holding that plaintiff need not prove it “could not have discovered the falsity upon reasonable investigation”), the court declines to follow those cases.

The court therefore grants in part Singer’s motion to exclude evidence and references to his alleged mere negligence. To the extent that any gross conduct by Singer may be a defense to one or more of his securities claims, evidence or questioning thereon may not be introduced before Loeb Rhoades succeeds in an offer of proof in persuading the court that the conduct is comparable to that of Loeb Rhoades.

It is so ordered.


text:
    In re OLYMPIA BREWING COMPANY SECURITIES LITIGATION.
    No. 77 C 1206.
    United States District Court, N.D. Illinois, E.D.
    June 10, 1985.

      Hartunian Futterman & Howard, Chartered, Chicago, 111., for plaintiff.
    Howard R. Koven, Steven L. Bashwiner, H. Nicholas Berberian, Howard D. Lieberman, Julie P. Shelton, Therese M. Obringer, Mark T. Carberry, Friedman & Koven, Chicago, 111., for defendant.
   MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

This federal racketeering and securities fraud ease is before the court on defendants’ motion to dismiss as untimely the complaint filed by plaintiff John Marks. In the court’s opinion of January 23, 1985, the court ordered further briefing of whether an amendment adding a claim under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (“RICO”), could “relate back” under Fed.R. Civ.P. 15(c) to the filing of the complaint containing the allegations which form the RICO predicate acts. This opinion will address only the relation back issue.

The court invited briefing of this issue by the other parties in this consolidated action, since the court’s opinion allowing RICO amendments by several parties left open whether relation back would be appropriate. In re: Olympia Brewing Company Securities Litigation, No. 77 C 1206, slip op. at 24-25 (N.D.Ill. Dec. 18,1984). At the time of the December 1984 opinion, the RICO amendments were not sufficiently detailed to allow the court to rule on Rule 15(c) relation back. Pursuant to court order, however, the Plaintiffs’ Committee filed on January 30, 1985 a “Bill of Particulars” setting forth the plaintiffs’ method of proving their RICO claims. Hence, the court is better equipped to evaluate whether the RICO amendments relate back to the filing of the complaints containing claims now alleged to be part of the RICO racketeering activity. This opinion addresses general principles applicable to all of the consolidated cases concerning the availability of Rule 15(c) effectually to toll the limitations periods for plaintiffs’ RICO claims.

“Relation Back” Under Rule 15(c)

The parties agree that the RICO amendments add factual allegations to the original pleadings. Thus, the precise issue before the court is whether proposed amendments that add factual allegations, as well as a new legal theory, may be deemed as having been filed at the time of the original complaint. Rule 15(c) provides, in relevant part:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleadings, the amendment relates back to the date of the original pleading.

Commentators and courts agree that Rule 15(c) was largely designed to notify a party that claims will be asserted that arise out of the “ ‘general fact situation set forth in the original pleading.’ ” Rosenberg v. Martin, 478 F.2d 520, 526 (2d Cir.) (Friendly, J.), cert. denied, 414 U.S. 872, 94 S.Ct. 102, 38 L.Ed.2d 90 (1973) (quoting from Snoqualmie Tribe v. United States, 372 F.2d 951, 960 (Ct.Cl.1967)). See 3 J. Moore, Moore’s Federal Practice 1115.15[2], at 15-190 to 191 (1985 & Supp.1985); Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 1725 n. 3, 80 L.Ed.2d 196 (1984). It goes without saying that relation back is appropriate where a party seeks to add a new legal theory to a set of previously alleged facts (assuming amendment is otherwise allowed under Rule 15(a)).

It is equally clear that “an amendment which states [an] entirely new claim for relief based on different facts will not relate back____” 3 J. Moore, supra, at 15-196 (footnote omitted). Hence, in Rosenberg, relation back was not allowed where a plaintiff alleging slander sought to amend his complaint to add a claim for assault. 478 F.2d at 526. The Court noted that no mention of assault was made in the original complaint. Even though the assault was close in time to the slander, therefore, fair notice of a claim of assault was not provided by the original pleadings. Similarly, in Holdridge v. Heyer-Schulte Corp. of Santa Barbara, 440 F.Supp. 1088 (N.D.N.Y.1977), the court did not allow relation back of a claim for malpractice in May 1972 to the original complaint of malpractice in July 1971. In arriving at that conclusion, the court cited several cases where relation back was not allowed, all of which concern amendments adding factual allegations distinct in time and in transaction from those of the original complaint. Id. at 1094. See also Marine Midland Bank v. Keplinger & Associates, Inc., 94 F.R.D. 101, 104 (S.D.N.Y.1982) (no relation back where plaintiffs’ claim of reliance on August 1977 statements expanded to include reliance on continuing statements through March 1979 and a continuing failure to correct the 1979 misstatements); Textile Museum v. F. Eberstadt & Co., Inc., 453 F.Supp. 72, 75 (S.D.N.Y.1978) (claim that investment service should have recommended sale in 1974 does not relate back to complaint alleging service should not have recommended purchase in 1969); Artman v. International Harvester Co., 355 F.Supp. 476 (W.D.Pa.1972) (no relation back of antitrust violations adding completely new factual allegations to original complaint of breach of contract and unfair dealing between two parties).

All of these cases involve amendments that are distinct from the original pleadings. In some, the original and the amended sets of facts were separated by a significant time lapse, such as the one year lapse in Holdridge. In others, the two sets of facts were different in character, such as the claims in Rosenberg of slander and assault. In still others, the two sets of facts led to arguably different injuries, as in Rosenberg, Textile, and Marine Midland. Relation back was clearly inappropriate in these cases under Rule 15(c).

Between these two clear principles is a grey area where courts have allowed relation back when amendments have added factual allegations that can be characterized as falling with the general “transaction” alleged in the original complaint. These cases rely for their holdings, sometimes only implicitly, on the philosophy of the Federal Rules to reject rigid categories of causes of actions in favor of a transactional or claim analysis. 3 J. Moore, supra, at 15-184, 185, 194. Whether these courts refer to “the events leading up to the injury,” Tiller v. Atlantic Coast Line R. Co., 323 U.S. 574, 581, 65 S.Ct. 421, 424, 89 L.Ed. 465 (1945); “the same occurrence,” Hageman v. Signal L.P. Gas, Inc., 486 F.2d 479, 484 (6th Cir.1973); or “the whole transaction,” Goodman v. Poland, 395 F.Supp. 660, 684 (D.Md.1975), they in effect allow additional factual allegations to relate back under Rule 15(c). These case, however, concern factual additions that are much more closely related in time and in transaction to the original allegations than the amendments discussed in the immediately preceding paragraph.

An example of this close relationship between the originally alleged transaction and the factual amendments can be found in Tiller. There, plaintiff alleged that her husband’s death was caused by the defendants’ failure to provide a proper lookout for him, to warn him of the approaching train, to keep the head car properly lighted, and to warn him of a sudden change in the method of shifting cars. The Court explained:

The amended complaint charged the failure to have the locomotive properly lighted. Both of them related to the same general conduct, transaction and occurrence which involved the death of the deceased____ The cause of action now, as it was in the beginning, is the same— it is a suit to recover damages for the alleged wrongful death of the deceased____ There is no reason to apply a statute of limitations when, as here, the respondent has had notice from the beginning that petitioner was trying to enforce a claim against it because of the events leading up to the death____

323 U.S. at 581, 65 S.Ct. at 424. Hence, while a new fact was added to the original pleadings, the underlying claim was basically the same.

Likewise, in Graboi v. Kibel, 432 F.Supp. 572, 575 (S.D.N.Y.1977), the plaintiff, who had been raped in defendant’s apartment building by a building employee, originally alleged breach of contract and vicarious liability for the defendant’s employee’s tort. The attempted amendments added theories of negligent design, maintenance, and construction of the building, as well as negligent hiring of the employee. The court found no relation back of the former factual allegations. Regarding negligent hiring, however, the court found the claim close enough to the original claim of assault that relation back was appropriate, even though the negligent hiring claim clearly contained additional factual allegations. These allegations, however, were close in time and subject matter to the general fact situation originally alleged. See Goodman, 395 F.Supp. at 684-686 (common law fraud relates back to claim of securities fraud, although at time intent was not an element of securities fraud claim); Zagurski v. American Tobacco Co., 44 F.R.D. 440, 441-443 (D.Conn.1968) (claim of failure to warn public of inherently dangerous product relates back to claim of breach of warranty of fitness of personal use); Hageman, 486 F.2d at 484 (claim that violation of state and federal statutes and negligent provision of gas to defective heater related back to claim of failure adequately to odorize gas and to warn of proper safety precautions to be used with gas).

These holdings, in which additional factual allegations relate back to closely-related original allegations, are consistent with the view that Rule 15(c) evidences a rejection of “mechanical rules ... such as whether evidence on the new claim could have been offered under the original pleadings____” 3 J. Moore, supra, at 15-207. While such an inquiry is relevant, sufficient notice of the new claim is arguably present where “the original claim and the amendment involve at least substantially overlapping occurrences.” De Malherbe v. International Union of Elevator Constructors, 449 F.Supp. 1335, 1353 (N.D.Ca.1978). See Rosenberg, 478 F.2d at 526 (amended allegations should be tested against “general fact situation” alleged in original complaint).

The court therefore finds that a claim adding new factual allegations may relate back to the original pleadings where a sufficiently close relationship exists between the original and the new claims. In such a case, the allegations all relate to the same transaction out of which the litigation arose, and Rule 15(c)’s notice requirements are met. In this regard, the temporal proximity of the facts is relevant, although not dispositive. See Rosenberg, 478 F.2d at 526. Also relevant are the general character of the sets of factual allegations and whether the facts are all part of the events leading to the originally alleged injury. Under this test, relation back in these cases is appropriate.

“Relation Back” in Present Case

In this consolidated case, the plaintiffs who filed individual actions complained of defendants’ alleged violations of, among other things, federal securities laws. Most of the plaintiffs had not filed claims under RICO, and these plaintiffs recently sought and obtained leave to add such claims. See In Re: Olympia Brewing Company Securities Litagation, No. 77 C 1206 (N.D.Ill. Dec. 18, 1984). In that opinion, as discussed above, the court considered only whether amendment should be allowed under Rule 15(a), and reserved ruling on whether plaintiffs would benefit from the relation back provisions of Rule 15(c). Hence, the court has already determined that defendants would not be prejudiced from plaintiffs’ RICO amendments, as allowed and limited in the court’s opinion.

Whether these amendments will relate back to the original complaints requires an analysis of the connection between the original and the amended pleadings. Plaintiffs have all pled violations of § 1962(a), which provides in relevant part:

It shall be unlawful for any person who has received any income derived, directly or indirectly from a pattern of racketeering activity ... to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.

Plaintiffs generally allege that the “pattern of racketeering activity,” 18 U.S.C. § 1961(1), (5), comprises two or more acts of the very securities or other frauds alleged in plaintiffs’ original complaints. The “enterprises,” 18 U.S.C. § 1961(4), have been limited by the court to the three major defendants in these cases, whose connection with interstate commerce was implicated in the securities fraud allegations.

Defendants protest most strongly the addition of factual allegations concerning the derivation of income from the pattern of racketeering activity and the use of that income in the operation of a RICO enterprise. It is true that allegations regarding these facts are simply not present in the original complaints, as proof thereof is not relevant to the original claims. Unaware of the plaintiffs’ proposed method of proving these new elements, the court noted in the December 18, 1984 opinion that the elements may not relate back to the original pleadings. Plaintiffs’ January 30, 1985 proffer submitted for the court’s use in resolving the relation back issue, establishes that the evidence of use and investment is intimately tied up with the originally alleged predicate acts of fraud.

According to plaintiffs, defendants derived the § 1962(a) “income” from trading income and margin interest. The former category includes commissions and markups on the sale of securities, appreciation in defendants’ own securities, and the purchase price of the shares sold to plaintiffs. The latter includes interest charged to customers on their margin debt resulting from the subject stock purchases. Defendants received this income from the very sales underlying the previously alleged acts of securities fraud. To prove this receipt of income, plaintiffs list the relevant documents, prepared by defendants, showing sales, commissions, and margin interest. Defendants’ own agents are listed as witnesses who will testify how defendants realized profits from this income. Plaintiffs indicate that this income was used to pay administrative expenses, compensate partners and employees, purchase stock, and issue dividends.

The receipt and use activities described in the proffer persuade the court that this conduct relates back to the securities fraud and other predicate act allegations. As described above, the RICO income was derived from the fraudulent transactions underlying the original complaints. Hence, the prohibited derivation of income is both close in time and subject matter to the previously alleged transactions. Moreover, the RICO and predicate act injuries are the same, and thus the set of facts underlying each claim leads up to the same injury. The same is true for the use allegations, since the RICO income simply became part of defendants’ ordinary operating expenses. The additional facts pertinent to the new RICO allegations, then, are so closely linked to the original frauds that they are part of the general fact situation originally alleged. See Gilbert v. Bagley, Securities L.Rptr. (CCH) ¶ 99,483, at 96.795 (M.D.N.C.1982) (§ 1962(c) allegations relate back to original allegations underlying predicate acts). This conclusion, of course, is based on the RICO proof as outlined in the plaintiffs’ proffer. The court finds, therefore, that the proffer defines the limits of plaintiffs’ evidence on the additional facts necessary to the RICO allegations for purposes of relation back of those allegations.

Conclusion

The additional factual allegations contained in the parties’ RICO amendments, as set forth in the Plaintiffs’ Committee’s proffer, do “relate back” under Fed.R. Civ.P. 15(c) to the filing of complaints containing claims that constitute the RICO predicate acts.

It is so ordered.

      . Defendants continue to argue that the amendments prejudice them because allowed after discovery was closed. However, the court explained in detail that the presence of RICO allegations on file well before the discovery cutoff date served sufficient notice to defendants that they should conduct discovery on how the RICO plaintiffs would prove these claims. All of these plaintiffs complained of market fraud, moreover, implicating all or at least most of the securities transactions involved in the consolidated cases. Hence, the defendants were on notice that discovery of all these transactions, and not just those of the original RICO plaintiffs, was necessary.


author: KEVIN THOMAS DUFFY, District Judge.

text:
    Judith GROGG, Edith G. Altier, Kay R. Bochert, Linda Callahan, Rosa Johnson, Carla C. Kocher, and Barbara N. McKnight, on behalf of themselves and on behalf of all persons similarly situated, and Barbara Nersinger, Frances J. Turnipseed, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, an unincorporated association, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, Local 416, an unincorporated association, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, Local 509, an unincorporated association, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, Local 717, an unincorporated association, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, Local 755, an unincorporated association, and International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, Local 801, an unincorporated association, Plaintiffs, v. GENERAL MOTORS CORPORATION, Defendant.
    No. 73 Civ. 63 (KTD).
    United States District Court, S.D. New York.
    June 6, 1985.

      Abourezk, Sobol & Trister, and Robert Friedman, Washington, D.C., for Union plaintiffs; Richard B. Sobol, Michael B. Trister, Washington, D.C., of counsel.
    Lewis, Greenwald, Kennedy & Lewis, P.C., New York City, for Class plaintiffs; Nicholas F. Lewis, New York City, of counsel.
    Parker Auspitz Neesemann & Delehanty, P.C., New York City, for defendant; Nathony M. Radiee, Charles S. Berquist, Charles L. Kerr, New York City, of counsel.
   MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, District Judge.

This action was instituted pursuant to the Civil Rights Act of 1964 in January of 1973 by and on behalf of nine female employees and other union and nonunion employees similarly situated and the International Union of Electronic, Electrical, Technical, Salaried and Machine Workers (“IUE”) and several of its locals to challenge certain practices of defendant General Motors Corporation (“GM”) as discriminatory. Specifically, Count I of the complaint contained allegations concerning the limitation by GM of sickness and accident benefits for pregnancy to six weeks. Count II dealt with the mandatory maternity leave policy of GM. Finally, in Count III, plaintiffs alleged that GM discriminated against female employees by refusing to pay them sickness and accident benefits for disability due to bilateral tubal ligation surgery.

During the early stages of this litigation, three subclasses separated by Count were certified and Count I was dismissed. See Grogg v. General Motors Corp., 72 F.R.D. 523 (S.D.N.Y.1976); Grogg v. General Motors Corp., 444 F.Supp. 1215 (S.D.N.Y.1978).

In December 1971, GM had formally discontinued its mandatory maternity leave policy and the new collective bargaining agreement, effective November 22, 1976, provided that certain elective surgical procedures such as tubal ligations would be covered by disability benefits. Thus, Counts II and III, insofar as they sought declaratory relief, became substantially moot. In addition, on October 31, 1978, Title VII was amended to prohibit sex discrimination on the basis of pregnancy. Accordingly, in 1978, the parties, including the IUE, entered into settlement negotiations to resolve the residual aspects of the case. Pursuant to my Order, during the settlement negotiations, IUE house counsel Winn Newman, Esq., who was participating in the discussions, engaged as independent outside counsel, the law firm of Abourezk, Sobol & Trister (“Abourezk”). In November of 1979, the settlement agreement was submitted to me for approval. The union plaintiffs joined the UAW in filing objections to the proposed settlement. The first proposed settlement was not approved because the cut-off date for Count II claims excluded class members who were forced to take involuntary maternity leave between April and December of 1971. See Grogg v. General Motors Corp., 529 F.Supp. 293 (S.D.N.Y.1981).

Thereafter, settlement negotiations were resumed and resulted in an August 5, 1983 Stipulation of Settlement. The second settlement, which was ultimately approved by an October 28, 1983 Judgment and Order, provided no relief on Count I, but provided for a fund of $600,000 to $800,000 for the payment of eligible claims of Count II subclass members and for payments of $200 for each eligible claim submitted by Count III subclass members. The individual plaintiffs who were represented by the law firm of Vladeck, Waldman, Elias & Engelhard, P.C. (“Vladeck”) settled with GM its claim pursuant to 42 U.S.C. § 2000e-5(k) for attorneys’ fees. The two other firms involved in this matter now move for an interim award of attorneys’ fees and litigation expenses.

First, the law firm of Lewis, Greenwald, Kennedy & Lewis, P.C. (“Lewis”), asserts that it is entitled to an attorneys’ fees award as it acted as co-counsel with Vladeck for the individual plaintiffs after the death of Irving Abramson, Esq. who, before his death, had been Vladeck’s co-counsel. (Vladeck’s fees included the fees generated by Abramson’s work). Second, the Abourezk law firm which represented the union plaintiffs, including the IUE, seeks an attorneys’ fees award. GM opposes both applications.

DISCUSSION

Section 706(k) of Title VII to the Civil Rights Act of 1964 (“the Act”) provides in part that the court, in its discretion, may allow a “prevailing party ... a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 2000e-5(k). Only “prevailing parties” may recover attorneys’ fees under section 1988. A plaintiff may be considered a prevailing party if “ ‘they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.’ ” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)). Reasonable attorneys’ fees are ordinarily granted to prevailing plaintiffs absent special circumstances. See Albermarle Paper Co. v. Moody, 422 U.S. 405, 415, 95 S.Ct. 2362, 2370, 45 L.Ed.2d 280 (1975). Furthermore, a party who secures substantial relief by way of settlement has been found to constitute a “prevailing party.” See Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575, 65 L.Ed.2d 653 (1980); Mendoza v. Blum, 560 F.Supp. 284, 287 (S.D.N.Y.1983).

A. Lewis, Greenwald, Kennedy & Lewis, P.C.

Lewis claims that it is entitled to an interim award of attorneys’ fees in the amount of $17,362.50 because it substituted for Irving Abramson, Esq. as co-counsel with Vladeck for the individual plaintiffs after Mr. Abramson died in January 1981. Although GM did not object to the payment of Mr. Abramson’s fees as part of its settlement with Vladeck, it does object to paying the fees of the Lewis firm arguing that neither GM nor Vladeck ever recognized Lewis as co-counsel.

Furthermore, GM asserts that no significant relief was procured by Lewis for its clients. GM notes that the Lewis firm submitted retainer agreements in 1981 for three individually-named plaintiffs which indicate that only two of the three, Ms. Grogg and Ms. Altier, will recover under the settlement. The third individual, Barbara McKnight, will not recover because her allegedly mandatory maternity leave began on April 15,1971, one day before the maternity leave date used as a cut-off for valid claims. The recovery by the two plaintiffs represented by the Lewis firm apparently will be, solely by virtue of their being members of the Count II subclass, approximately $750 each. GM states also that the recovery by the two plaintiffs represented by Lewis would be the same if Vladeck alone represented the individual plaintiffs.

In further opposition to Lewis’ claim, GM asserts that the law firm’s role in the negotiation of the second settlement was “largely, if not completely, duplicative and redundant of the representation provided to the class by the Vladeck firm.” Affidavit of Anthony M. Radice ¶ 8. The Lewis fee application contains a request for 43 hours expended prior to June of 1981. GM objects to those fees—as being incurred prior to the time Lewis represented anyone in this matter. Finally, GM asserts that any award to Lewis should be substantially reduced.

There is no dispute that pursuant to my Order the Lewis firm was substituted properly for Mr. Abramson. Once the substitution became effective in June 1981, it appears that the Lewis firm diligently attended all negotiation sessions and conferences. Abramson was the original counsel for the individual plaintiffs and it was he who retained the Vladeck firm as co-counsel. At the time of the proposed substitution, I considered the Vladeck firm’s objections to the substitution of Abramson by the Lewis firm. Ultimately, however, I decided that such substitution was proper. It is inconsistent for GM to recognize that Mr. Abramson represented prevailing parties but not to recognize that Mr. Abram-son’s successor did so. The fact that by reason of the settlement, two of the individuals represented by the Lewis firm will recover only $750 each does not preclude a finding that substantial relief has been procured for those two women and other members of the class who did not sign retainer agreements with the Lewis firm.

For the above reasons, I find that the plaintiffs represented by the Lewis firm are prevailing parties within the meaning of the Act. The fees claimed for work performed prior to the effective date of the substitution order, however, are disallowed as I find Lewis’ representation of the individual plaintiffs was duplicative with Mr. Abramson’s representation. Furthermore, from Lewis’ submissions, it is apparent that most of the effort by the Lewis firm prior to its substitution as counsel was directed at becoming familiar with the case, locating files in the courthouse, and preparing the motion for substitution. Such time was not reasonably expended and is therefore not compensable.

Furthermore, the fees requested by Lewis for work performed after the substitution of counsel became effective must be reduced because there was substantial duplication of effort with the Vladeck firm. In addition, some of the descriptions of the work performed are vague and therefore not susceptible to a determination of whether the time was reasonably expended. Finally, 20 percent of the fees claimed represent the time expended in the preparation of the attorneys’ fees’ application. Although ordinarily the time spent in preparing an attorneys’ fees’ application is compensable, see Gagne v. Maher, 594 F.2d 336, 344 (2d Cir.1979), the time must nevertheless have been reasonably expended. Accordingly, the total of 159.25 hours less 43 hours claimed for pre-June 1981 work, or 116.25 hours, will be reduced by 50 percent. A total of 58.13 hours will therefore be compensable; 6.33 hours for the work of Everett E. Lewis and 51.80 hours for the work of Nicholas F. Lewis.

The Lewis firm suggests as reasonable hourly rates, $100 per hour for Nicholas F. Lewis and $150 per hour for Everett E. Lewis. The twelve factors that are relevant in determining the amount of the fee are: “(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly;” (4) the preclusion to the attorney of alternative employment; “(5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations ...; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorneys; (10) the ‘undesirability’ of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.” Hensley, 461 U.S. at 430 n. 3, 103 S.Ct. at 1937 n. 3. Based on an assessment of the above factors, I conclude that the hourly rates sought by the. Lewis firm must be reduced.

For example, by the time that the Lewis firm became involved in this matter, many of the more complex issues had already been resolved through easelaw, negotiations, or legislation. Furthermore, the Lewis firm does not dispute that the Vladeck firm was primarily involved with the negotiation of the settlement. And, although clearly not dispositive, it is relevant that the two plaintiffs represented by the Lewis firm will, as a result of the settlement, receive only $750 each. Furthermore, the Second Circuit has stated that, for multi-year litigation, historic, not current, rates are properly utilized in computing a fee award. See Asociation for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1153 (2d Cir.1983). Thus, the work of Nicholas Lewis must be compensated at associate, not partner, rates because he did not become a partner until 1984. Accordingly, Everett E. Lewis’ time will be compensable at $130 per hour and Nicholas F. Lewis’ time will be compensable at $70 per hour.

B. Abourezk, Sobol & Trister

The IUE and IUE locals 416, 509, 717, 755, and 801 (“the union plaintiffs”), move for an interim award of attorneys’ fees in the amount of $92,136.25 plus $4,745.56 in expenses. The breakdown of the requested fees is as follows:

Attorney Hours Rate Fee Requested
Richard B. Sobol 158.75 175 $ 27,781.25
Michael B. Trister 196.75 175 34,431.25
Steven G. Liss 65.00 100 6,500.00
Ann H. Franke 208.25 100 20,825.00
Law Students/ 74.25 35 2,598.75
Paralegal TOTAL $92,136.25

GM opposes the application by the union plaintiffs arguing that they are not “prevailing parties” within the meaning of the Act and that the union plaintiffs’ request for fees is grossly disproportionate to their role in the proceedings leading to settlement. Alternatively, GM argues that the fees requested should be reduced.

GM asserts that the union plaintiffs are not prevailing parties because (1) they were parties only to Count I of the complaint and that Count I was dismissed by me for failure to state a claim, (2) they had no standing to pursue the monetary claims which remained after the discontinuance of the challenged practices, and (3) they did not play a significant role in obtaining the results in the litigation.

The unions contend that the case was initially commenced in 1973 by the union plaintiffs through union counsel as part of a comprehensive program to combat sex discrimination against its female members, specifically as it pertained to pregnant women. Furthermore, they assert that they contributed significantly to the settlement negotiations. For example, the first settlement was objected to by the unions on six grounds; one ground was that a certain portion of the class was excluded from eligibility. The first settlement was disapproved on that basis and the second settlement agreement reflected changes based on the other objections.

The union plaintiffs may be considered prevailing parties under the circumstances of this case if they qualify as parties who have secured substantial relief by way of the approved settlement. See Maher, 448 U.S. at 129, 100 S.Ct. at 2574. GM does not dispute that the IUE and its locals played an active role in this litigation. The IUE house counsel, Winn Newman, Esq., was joined by the Abourezk law firm after the unions were ordered by me to retain independent counsel. The request for fees by the Abourezk firm does not include any claim for fees arising from Newman’s work as the 1983 Stipulation of Settlement provided specifically that the unions’ house counsel waived all claims to attorneys’ fees.

The union plaintiffs actively participated in the settlement of this matter. Because they refused to waive their claim for attorneys’ fees, however, they were not signatories to the first stipulation of settlement. In the second stipulation of settlement, it was provided that the union plaintiffs had the right to apply to the court for an allowance of attorneys’ fees and expenses with reference only to the services performed by outside counsel. GM reserved the right to object to such an application.

Contrary to GM’s assertion, it is unimportant, in ascertaining whether the union plaintiffs are prevailing parties, that Count I of the complaint—the only count alleging injury by the union itself—was dismissed by me. It was alleged in Count I that the union had attempted unsuccessfully to convince GM to drop its six-week limitation on disability benefits for pregnancy-related disability; therefore, the unions alleged that it was subject potentially to actions arising from the inclusion of that provision in the collective bargaining agreement. Similar allegations were not included in Counts II and III because the collective bargaining agreement did not contain provisions pertaining to GM’s practices challenged in such counts. Thus, the unions’ role in prosecuting the claims in the last two counts was not limited by the allegations of the first claim. Consequently, I reject GM’s argument that the union plaintiffs were plaintiffs only with respect to Count I.

The same is true with reference to the lack of union standing to assert claims for monetary damages which is all that remained after the practices challenged in Counts II and III were discontinued. Section 706(f)(1) of the Act provides that an enforcement action may be brought by “any person claiming to be aggrieved.” 42 U.S.C. § 2000e-5(f)(l). A labor organization has been found to constitute a “person aggrieved” and may therefore seek relief, monetary or otherwise, on behalf of its members. See Franks v. Bow man Transportation Co., 424 U.S. 747, 764 n. 21, 96 S.Ct. 1251, 1264 n. 21, 47 L.Ed.2d 444 (1976) (legislative history to 1972 Amendments indicates approval of prior caselaw); Local 186, International Pulp, Sulphite and Paper Mill Workers v. Minnesota Mining and Manufacturing Co., 304 F.Supp. 1284, 1294 (N.D.Ind.1969). See also International Woodworkers of America v. Chesapeake Bay Plywood Corp., 659 F.2d 1259, 1266-69 (4th Cir.1981) (fact that union did not allege injury to itself as an entity does not preclude standing); Equal Employment Opportunity Commission v. Printing Industry of Metropolitan Washington, D.C., Inc., 92 F.R.D. 51, 53 (D.D.C.1981) (policy considerations weigh strongly in favor of according union standing to assert its members’ Title VII claim). Even assuming that the union plaintiffs lacked standing, GM had its opportunity during the litigation to challenge the standing of the unions but did not do so. Thus, GM’s argument is untimely and therefore would not serve as a bar to a fee recovery.

GM’s assertion that the union plaintiffs may not recover attorneys’ fees because it did not play a significant role in the litigation in that the unions had filed objections to the settlement is also rejected. There is nothing to indicate that the unions attempted to sabotage settlement negotiations. The fact that objections were filed with the court based on feedback received after information concerning the settlement was disseminated to the class members does not support the conclusion that the union plaintiffs are not prevailing parties. If anything, such objections are of extreme importance and assistance to the court in the analysis for approval or disapproval of the settlement of a class action. Furthermore, the arguments advanced by both the union plaintiffs and GM over whether or not the second settlement was an improvement over the first settlement is irrelevant to a finding that the union plaintiffs are prevailing parties. There is no way of knowing whether the members of the class would have benefited more under the uncertain arrangement of the first settlement.

For all of the above reasons, I conclude that the union plaintiffs are prevailing parties within the meaning of the Act. An award under 42 U.S.C. § 2000e-5(k), however, may only be made for time reasonably expended. In order to ascertain whether the requested fees are reasonable, adequate records of the time spent must be reviewed. In the instant case, the majority of the law firm’s notations on the contemporaneous time records (numbers which correspond to a description of the work) are either overly vague or totally illegible. For example, I have no idea, nor has the firm indicated to me, what the subject matter of the many hours of office study was. There can be no meaningful review of such time records. I have no doubt that substantial time was expended in connection with this matter but given the inadequate nature of the records submitted and the duplication of effort by the Abourezk firm with the Vladeck firm, the hours worked must be reduced by 50 percent.

In addition, the requested rate of $175 per hour for the work of Mr. Sobol and Mr. Trister, and $100 per hour for the work of Mr. Liss and Ms. Franke and $35 per hour for paralegals and students must be reduced. I find that reasonable rates would be $130, $70, and $25 per hour, re-spectively. Accordingly, the fee award to the Abourezk firm is as follows:

Attorney Hours Rate Fee
Richard B. Sobol 79.33 130 $ 10,319.40
Michael B. Trister 98.38 130 12,789.40
Steven B. Liss 32.50 70 2,275.00
Ann H. Franke 104.13 70 7,289.10
Law Students/ 37.13 25 928.25
Paralegals TOTAL $33,601.15

Thus, a total of $33,601.15 in attorneys’ fees plus $4,745.56 in expenses is recoverable by the union plaintiffs. A total of $4,455.40 in attorneys’ fees is recoverable by the individual plaintiffs represented by the Lewis firm. Judgments shall be submitted in ten (10) days on five (5) days’ notice.

SO ORDERED.

      . The cases cited by GM in support of its proposition that unions may not pursue the monetary claims of its members are, for the most part, distinguishable because the lawsuits were not predicated upon Title VII or did not squarely decide the issue. See, e.g., International Union, United Automobile Aerospace and Agricultural Implement Workers of America v. Johnson, 674 F.2d 1195, 1199-1200 (7th Cir.1982) (summary judgment against the union reversed because complaint could be construed to allege injury to some of the union’s members). Grocery Manufacturers of America, Inc. v. Gerace, 581 F.Supp. 658 (S.D.N.Y.1984) cited by GM is totally and completely inapposite and apparently was cited merely to show that GM’s attorneys had read recent decisions which I authored.