Ceglia v. Schweiker, 81 Civ. 1440.

• Decision Date: 24 May 1983
• Docket Number: No. 81 Civ. 1440.,81 Civ. 1440.
• Citation: 566 F. Supp. 118
• Parties: Marie CEGLIA, Plaintiff, v. Richard S. SCHWEIKER, Secretary of the United States Department of Health and Human Services, Defendant.
• Court: U.S. District Court — Eastern District of New York

566 F. Supp. 118

Marie CEGLIA, Plaintiff, v. Richard S. SCHWEIKER, Secretary of the United States Department of Health and Human Services, Defendant.

No. 81 Civ. 1440.

United States District Court, E.D. New York.

May 24, 1983.

COPYRIGHT MATERIAL OMITTED

Jane C. Reinhardt, Nassau/Suffolk Law Services Committee, Bay Shore, N.Y., for plaintiff.

Winstanley F. Luke, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y., for defendant.

MEMORANDUM AND ORDER

GLASSER, District Judge:

On January 28, 1983, this Court remanded for reconsideration a determination of the Secretary of Health and Human Services (the "Secretary") denying plaintiff's application for widow's disability benefits. Plaintiff now petitions this Court for attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d).¹ For the reasons that follow, the application of the plaintiff is granted.

Facts

The plaintiff applied for Disabled Widows Social Security Insurance benefits on October 18, 1979 (T 60-65). After her application was denied, the plaintiff filed for a reconsideration of the claim and it was again denied. (T 67-68, 70-73, 74-75). The plaintiff then requested an administrative hearing, which was held before an Administrative Law Judge ("ALJ") on July 18, 1980.

The record before the ALJ contained medical evaluations favorable to the plaintiff's claim by the plaintiff's treating physician and a physician who examined her as a consultant to the Social Security Administration. The record also contained a medical evaluation unfavorable to the plaintiff's claim by a Dr. David Abramson, who did not examine plaintiff but merely reviewed her social security file as a consultant to the Social Security Administration.

The ALJ, in a decision rendered on October 17, 1980, affirmed the denial of the plaintiff's application for widow's benefits. (T 12-16) The ALJ based his denial of benefits substantially on the conclusions of Dr. Abramson. (T 15)

The plaintiff then requested a review of the ALJ's decision by the Appeals Council of the Social Security Administration. Plaintiff's counsel submitted a letter to the Appeals Council which argued that the decision of the ALJ should be reversed because the evidence established that plaintiff was disabled. Plaintiff argued in the alternative that the matter should be remanded for a new hearing because the ALJ's decision, in resting primarily on the evaluation of a non-treating, non-examining physician, was not supported by substantial evidence. The Appeals Council denied the plaintiff's request for review on March 2, 1981, thereby rendering the ALJ's decision the final decision of the defendant in this case. (T 4-5)

The plaintiff commenced this action on May 4, 1981, and was permitted to prosecute this appeal in forma pauperis. In her complaint the plaintiff argued that this Court should reverse the defendant's decision because the record established disability. In the alternative, the plaintiff argued that the ALJ failed to properly weigh the evaluations of the physicians involved in this case and that, therefore, the matter should be remanded for a new hearing.

On July 27, 1982, the plaintiff moved for summary judgment in her favor. On August 26, 1982, the defendant cross-moved for judgment on the pleadings in its favor.

In a memorandum and order dated January 28, 1983, I denied the defendant's motion and granted the plaintiff's motion to the extent of remanding the plaintiff's claim to the defendant Secretary for a new hearing. In reaching this determination, I held that Dr. Abramson's medical opinion, contrary as it was to the opinions of the examining physicians, could not constitute substantial evidence supporting a finding of nondisability. The matter was remanded for a new hearing wherein the reports of the examining physicians were to be properly weighed.

That order was entered by the Clerk of the Court on February 1, 1983. This motion for counsel fees under the EAJA was made within thirty days of that order.

Discussion

The EAJA provides, in relevant part, that a Court:

"shall award to a prevailing party ... fees and expenses ... incurred by that party in any civil action ... brought by or against the United States ... unless the Court finds that the position of the United States was substantially justified or that special circumstances make an award unjust."

28 U.S.C. § 2412(d)(1)(A).

Defendant opposes the plaintiff's application for fees on the grounds that (1) plaintiff was not a "prevailing party" within the meaning of the EAJA; (2) plaintiff has not "incurred" any fees or expenses within the meaning of the EAJA; (3) the position of the United States was "substantially justified," and (4) plaintiff's fee request is inflated. These arguments will be treated seriatim.

(1) Defendant argues that because the plaintiff's claim for benefits was merely remanded to the Secretary by this Court, the plaintiff is not a "prevailing party" under the Act. Plaintiff argues that the remand order was a sufficiently dispositive ruling to justify an award of fees.

While the EAJA requires that the plaintiff be a "prevailing party," this term is not defined in the Act. The House Report, however, notes that "a fee award may ... be appropriate where the party has prevailed on an interim order which was central to the case." H.R. 1418, 96th Cong., 2d Sess. 11, reprinted in 1980 U.S.Code Cong. & Ad.News 4953, 4984, 4990 (citing Parker v. Matthews, 411 F.Supp. 1059, 1064 (D.D.C. 1976)). I find that the order of remand here, while not a final appealable order,² was sufficiently central to the case to justify an award of fees.

The gravamen of the plaintiff's complaint was that the decision of the Secretary was not supported by substantial evidence because it improperly relied on the report of a non-examining doctor. The plaintiff sought outright reversal, and remand in the alternative.

Although the plaintiff did not obtain the relief of reversal and consequent granting of benefits, the plaintiff's contention that the decision of the Secretary did not rest on substantial evidence was clearly vindicated by my order of remand. It is significant to observe in this regard that the plaintiff's claim was not remanded to the Secretary simply for a clarification of the agency's decision, or for the taking of additional evidence. Rather, the case was remanded to the Secretary for a de novo determination of the plaintiff's eligibility for benefits "giving proper weight to the reports of the treating and consultative physicians." Ceglia v. Schweiker, 81 Civ. 1440 (E.D.N.Y. January 28, 1983) (Memorandum and Order at p. 5). Because the plaintiff's legal theory was substantially adopted by the Court, and because significant alternative relief requested in the complaint was granted, I find that the remand order was central to the case, and that the plaintiff was therefore a "prevailing party" within the meaning of the EAJA.

In this regard, the case is not unlike Ocasio v. Schweiker, 540 F.Supp. 1320 (S.D. N.Y.1982), wherein Judge Weinfeld granted fees to a plaintiff after the government consented to remand the case to the Secretary. Judge Weinfeld stated: "The Agency's error forced plaintiff and her attorneys into this Court, and their persistence resulted in correction of the error. Denial of fees to her attorneys for their services is inconsistent with the purposes of the Social Security Act and the EAJA." Id. at 1323. See also MacDonald v. Schweiker, 553 F.Supp. 536 (E.D.N.Y.1982) (Pratt, J.) (fees granted after case was remanded for reconsideration by appeals council.)³

(2) Defendant next argues that the plaintiff has not "incurred" any fees here, since she was represented free of charge by a Legal Services organization. Plaintiff maintains that the term "incurred" as used in the statute should not be given a narrow reading requiring the plaintiff to be actually liable for the fees awarded.

The question presented here has been considered by various district courts, with inconsistent results. Compare Cornella v. Schweiker, 553 F.Supp. 240 (D.S.D.1982) (plaintiff must be actually liable for fees) and Hornal v. Schweiker, 551 F.Supp. 612, 616 (M.D.Tenn.1982) (fees recoverable by legal services organization). After considering the opinions analyzing this question, I am persuaded that fees should be available here despite the pro bono nature of the services rendered.

Although a literal reading of the statute alone supports the defendant's argument, the legislative history of the statute provides a strong indication that the word "incurred" should not be interpreted narrowly. As Judge Wiseman observed in Hornal v. Schweiker, 551 F.Supp. 612, 616 (M.D.Tenn. 1982), the House Report on the EAJA states:

In general, consistent with the above limitations, the computation of attorney's fees should be based on prevailing market rates without reference to the fee arrangements between the attorney and client. The fact that attorneys may be providing services at salaries or hourly rates below the standard commercial rates which attorneys might normally receive for services rendered is not relevant to the computation of compensation under the Act. In short, the award of fees is to be determined according to general professional standards.

H.R.Rep. No. 96-1418, supra, at 4994.

Based upon this legislative history, I am persuaded that Congress did not intend the term "incurred" as used in the EAJA to limit recovery to those fees for which a plaintiff is actually liable. In addition to being supported by legislative history, this result serves to insure that legal services groups, and other pro bono counsel, have a strong incentive to represent indigent social security claimants. This is consistent with the goals of the Social Security Act and the EAJA.⁴ I therefore join with those courts that have held fees to be recoverable under these circumstances. See San Filippo v. Secretary, 564 F.Supp. 173 (E.D.N.Y.1983...