Aldrich v. Heckler

• Decision Date: 29 May 1985
• Docket Number: Civ. No. 83-0198-B.
• Citation: 609 F. Supp. 863
• Court: U.S. District Court — District of Maine
• Parties: Rose ALDRICH, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.

609 F. Supp. 863

Rose ALDRICH, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.

Civ. No. 83-0198-B.

United States District Court, D. Maine.

May 29, 1985.

Richard A. Estabrook, Bangor, Me., for plaintiff.

Timothy C. Woodcock, Asst. U.S. Atty., William H. Browder, Asst. U.S. Atty., Bangor, Me., for defendant.

ORDER GRANTING AWARD OF COUNSEL FEES

CYR, Chief Judge.

Plaintiff moves for an award of counsel fees pursuant to the Equal Access to Justice Act EAJA, 28 U.S.C. § 2412(d)(1)(A).

Plaintiff filed an application for Supplemental Security Income benefits on February 10, 1982, alleging an inability to work since 1981 due to fainting spells, bladder dysfunction and ulcers. The application was denied initially and upon reconsideration. A de novo hearing was held on October 6, 1982, before a Social Security Administration administrative law judge ALJ, and on December 30, 1982, the ALJ found that plaintiff did not have a "severe" impairment and that therefore she was not disabled. On March 24, 1983 the ALJ's decision became the "final decision" of the Secretary upon its affirmance by the Appeals Council.

Plaintiff timely sought judicial review pursuant to 42 U.S.C. § 1383(c)(3) and on January 27, 1984 the court remanded the case to the Secretary for further administrative proceedings. Aldrich v. Heckler, No. 83-0198-B (D.Me.1984) unpublished order. The court found that in deciding that plaintiff did not suffer from a severe mental impairment, the ALJ improperly rejected, without explication, uncontradicted medical evidence that plaintiff suffered from conversion hysteria with seizures of a degree that would affect her ability to work. The court rejected the ALJ's characterization of the evidence as "speculative" and observed that in light of the available evidence in the record "pointing to the possible, if not probable, presence of so many serious impairments, both physical and mental .., and considering the utterly destitute circumstances of this plaintiff, the failure to develop the record at the Secretary's expense ... was a dereliction of duty." Order, at 9, 11.

On March 10, 1984, prior to any further proceedings on remand, plaintiff died. On August 30, 1984 the Appeals Council vacated its prior decision denying benefits and entered its order awarding benefits from the date of application to the date of death. The parties entered into a stipulation of dismissal on September 13, 1984, formally concluding the action.

Enacted in 1980, the EAJA authorizes an award of fees and expenses to parties who prevail against the United States, unless the government's position was "substantially justified" or "special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). Applicable to actions seeking judicial review of the administrative denial of social security benefits,¹ see Martin v. Heckler, 754 F.2d 1262, 1264 & n. 2 (5th Cir.1985) and cases cited, the purpose of the EAJA is to reduce the danger that challenges to unreasonable governmental action would be deterred by the high cost of litigating against the government. H.R.Rep. No. 1418, 96th Cong., 2d Sess. 9-10, reprinted in 1980 U.S.Code Cong. & Ad.News 4953, 4984-88.

The determinative issue on the motion for counsel fees under the EAJA is whether the Secretary's position, i.e., the Secretary's decision denying benefits, see Cornella v. Schweiker, 728 F.2d 978, 983 (8th Cir.1984), was substantially justified,² which essentially turns upon the reasonableness in law and fact of the action taken. On this issue the government bears the burden. Washington v. Heckler, 756 F.2d 959, 961 (3d Cir.1985); Wolverton v. Heckler, 726 F.2d 580, 583 (9th Cir.1984). Although an adverse decision on the merits does not preclude a finding of substantial justification, Martin v. Heckler, 754 F.2d at 1264, the Secretary's position is unreasonable where she presents no evidence to support her position, e.g., Hicks v. Heckler, 756 F.2d 1022, 1025 (4th Cir.1985), or where she applies an erroneous legal standard, see Washington v. Heckler, 756 F.2d at 967-68; Howard v. Heckler, 581 F.Supp. 1231, 1233 (S.D.Ohio 1984). Similarly, substantial justification does not mean "non-frivolous," McDonald v. Schweiker, 726 F.2d 311, 316 (7th Cir.1983), and will not be found where the Secretary merely relies on "some evidence" of nondisability, see Tressler v. Heckler, 748 F.2d 146, 150 (3d Cir. 1984). Rather, to meet her burden the Secretary must make a "strong showing" that her position was justified. Washington v. Heckler, 756 F.2d at 961; Cornella v. Schweiker, 728 F.2d at 982 & 983 n. 9. But see Guthrie v. Schweiker, 718 F.2d 104, 108 (4th Cir.1983) Secretary's position is substantially justified although she does no more than rely on an arguably defensible administrative record.

Upon review and consideration of the entire record the court finds that the position of the Secretary was not substantially justified.

The principal piece of medical evidence pertaining to plaintiff's various physical and mental impairments was the medical report of Dr. Leadley, a specialist in internal medicine. Dr. Leadley determined that plaintiff had a psychiatric problem, which probably was the result of an inadequate personality disorder with hysterical features and chronic anxiety with paresthesias. Dr. Leadley offered this assessment based on physical examinations of the plaintiff, as well as on his personal observations of two of plaintiff's "seizures" or "spells," which he described in great detail. At the hearing before the ALJ, Dr. Ordway, a board-certified psychiatrist serving as medical advisor, testified that the description of plaintiff's spells provided by Dr. Leadley "certainly is typical of hysterical conversion spells or seizures." Dr. Ordway also testified that based on Dr. Leadley's personal observations, plaintiff's medical history and plaintiff's description of her symptoms, which were also described in the testimony of plaintiff's husband, plaintiff met the listed impairment for functional nonpsychotic disorders set forth in 20 C.F.R. Part 404, Subpart P, Appendix I, § 12.04.

The ALJ rejected, as "speculative," Dr. Leadley's report and Dr. Ordway's testimony regarding plaintiff's seizure disorder, in that their conclusions were not supported by the requisite clinical and laboratory findings. The Secretary asserts that she reasonably argued that the report of Dr. Leadley was not supportive of a finding that plaintiff suffered from a severe mental impairment, and that the ALJ's characterization of Dr. Ordway's testimonial diagnosis, as "speculative," was not unreasonable given the absence of firm objective findings.

The court's decision remanding this case makes clear that the Secretary's determination of nonseverity was not reasonable in law or in fact. There was no evidence in the record contraindicating Dr. Ordway's medical assessment and diagnosis, yet without asking any but the most open-ended questions of Dr. Ordway the ALJ simply concluded that Dr. Ordway's diagnosis was "speculative." In finding that there was no reason that Dr. Ordway's testimonial diagnosis did not constitute a medically acceptable clinical diagnostic technique, as contemplated by the Secretary's regulations, see 20 C.F.R. § 416.928(b); see also 42 U.S.C. § 1382c(a)(3)(C), the Court observed:

Dr. Leadley is an internist, not a psychiatrist like Dr. Ordway. Both Dr. Leadley, in his apparently disparaging description of the spells he observed (and then in his description of plaintiff's falling asleep in his waiting room), and the ALJ, in his quotation of Dr. Leadley's description of these spells, appear to suggest that plaintiff may have been feigning these spells. Yet Dr. Leadley's diagnosis does not question that plaintiff suffers from `episodic spells of unknown etiology,' only their etiology is questioned, see Tr. at 144. The ALJ does not base his finding (that there was insufficient medical evidence) on plaintiff's incredibility, but on the basis that Dr. Leadley's diagnosis (and Dr. Ordway's as

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