U.S. District Court, Western District of New York Case Summaries:

Daily Record (Rochester, NY), Aug 21, 2008

U.S. District Court, Western District of New York

Social Security

Attorney's Fees

Muntz v. Astrue

07-CV-6020

Judge Larimer

Background: The plaintiff, having prevailed in this action for Social Security benefits, has moved for an order granting attorneys' fees. Pursuant to a contingent fee agreement with plaintiff providing for attorneys fees in the amount of 25 percent of any award recovered by plaintiff, plaintiff's counsel, Donald R. Bleier, seeks fees in the amount of $25,721, which constitutes the balance of 25 percent of the past due benefits awarded to plaintiff. The court previously awarded $7,168 under the Equal Access to Justice Act.

Ruling: The court finds that the amount of the requested fee is reasonable, in light of the character of the representation, Bleier's expertise in Social Security law, the results achieved, and the absence of any delay in the proceedings by Bleier.

Donald R. Bleier for the plaintiff and John J. Field, of the U.S. Attorney's Office, for the defendant

Disability Insurance

Shetron v. Commissioner of Social Security

05-CV-280

Judge Scullin

Background: Plaintiff filed an application for disability insurance benefits on Dec. 17, 2002, alleging that he had been disabled since July 1, 2002, due to joint problems, diabetes, diabetic retinopathy, and binocular glaucoma. It was denied and he filed this action for judicial review of that denial. The plaintiff asserted that the ALJ erred when he failed to develop the record fully regarding Plaintiff's alleged severe depression, the ALJ erred in assessing the severity of plaintiff's impairments, the ALJ failed to evaluate plaintiff's credibility properly and that the substantial evidence in the record did not support the ALJ's residual functional capacity assessment.

Ruling: In addition to the medical evidence, the record demonstrated that the plaintiff continued to work on independent computer software projects after filing for disability benefits. The court finds that the fact that plaintiff was willing and able to perform such work negates his claim that he did not have the residual functional capacity to perform his past relevant work as a consultant, user support analyst, computer systems engineer, computer analyst, and president of an Internet service provider. The denial of benefits is affirmed.

Thomas C. Erwin for the plaintiff and Dennis J. Canning, of the Social Security Administration, for the defendant

'Habeas Corpus'

Recusal

Curkendall v. Mazzuca

05-CV-688

Judge Skretny

Background: The petitioner commenced this action for federal habeas relief in 2005. The petitioner was convicted of manslaughter, vehicular manslaughter, DWI, leaving the scene of an accident and assault in Chemung County Court in 2001 arising out of a car accident in 2000. Between lunch, grocery store and little league practice errands, and games of Quick Draw, the petitioner consumed six beers and a shot of Black Haus before his vehicle struck another vehicle and killed the driver. The petitioner asserted four grounds for relief in this petition arguing that his convictions and sentences are unconstitutional based on a lack of sufficient evidence to support each conviction in violation of the 14th Amendment's Due Process Clause, the trial court judge's failure to recuse himself, the lack of an impartial jury and ineffective assistance of counsel. The magistrate judge recommended that the petition be dismissed.

Ruling: The magistrate had noted that the court cannot consider certain of the convictions for which the sentences had already expired at the time the petition was filed. The trial judge had, as a Chemung County Assistant District Attorney, prosecuted petitioner on a drunk driving charge 14 years earlier. The decedent had also been a court employee which, as the petitioner argued, created an even greater likelihood of bias. However, the constitutional validity of a judge's qualifications is not implicated unless the judge has a direct, personal, substantial pecuniary interest in reaching a particular conclusion in a case. The petition is dismissed.

Michael Curkendall, petitioner pro se, and Michelle E. Maerov, of the NYS Attorney General's Office, for the respondent.