Cornella v. Schweiker, 83-1209
| Decision Date | 21 February 1984 |
| Docket Number | No. 83-1209,83-1209 |
| Citation | 728 F.2d 978 |
| Parties | , Unempl.Ins.Rep. CCH 15,157 Wallis D. CORNELLA, Appellant, v. Richard SCHWEIKER, Secretary, Health & Human Services, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Phillip N. Hogen, U.S. Atty., Sioux Falls, S.D., J. Paul McGrath, Asst. Atty. Gen., William Kanter, Sara B. Greenberg, Attys., Appellate Staff, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for appellee.
Black Hills Legal Services, Inc. by Mark Falk, Rapid City, S.D., for appellant.
Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and ARNOLD, Circuit Judge.
Wallis D. Cornella appeals from the district court's denial of his application for attorneys' fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. Sec. 2412; 5 U.S.C. Sec. 504 (Supp.1982). The district court denied the application because (1) the Social Security Administration was "substantially justified" in denying Cornella disability benefits and, in the alternative, (2) Cornella did not "incur" any attorneys' fees within the meaning of the EAJA since he was represented by a pro bono organization. We reverse the judgment of the district court.
Cornella initially applied for disability benefits on November 11, 1977 due to severe problems with his back and hearing. After a hearing held in November of 1978, the Administrative Law Judge (ALJ # 1) denied Cornella's claim. After the Appeals Council upheld this ruling, Cornella sought review in federal district court.
The district court remanded for further development of the record. A second hearing was held before a different Administrative Law Judge (ALJ # 2) on October 9, 1980. On March 27, 1981 ALJ # 2 recommended a partial denial of Cornella's claim. The Appeals Council modified this decision but nonetheless still partially denied Cornella's claim for disability benefits. Cornella again sought review in the district court. The court, in a lengthy memorandum opinion, see Cornella v. Schweiker, 545 F.Supp. 918 (D.S.D.1982), reversed and ordered the Secretary to pay full benefits to Cornella. Subsequently Cornella requested attorneys' fees pursuant to the EAJA. As stated, the district court denied the request. See Cornella v. Schweiker, 553 F.Supp. 240 (D.S.D.1982).
In order to view the parties' contentions in proper perspective, we will summarize Cornella's first administrative hearing was held on November 28, 1978 and he was not represented by counsel. Cornella testified that he could lift nothing, including tarps and chains on trucks. Constant back pain interfered with his sleeping and his normal activities. Even walking was painful. Cornella stated that he suffered from chronic headaches, increasing in severity since 1972. He further testified that he wore a back brace constantly, even when he was asleep, and took two-hour naps during the day. He attended his first hearing on crutches and was using a cervical traction kit to stretch his neck muscles. At the time of the first hearing Cornella was taking many different kinds of prescribed medications including Valium, Darvon, Motrin, Ascriptin, Napersin, and Tylenol # 3 (with Codeine). Cornella was treated at the Fort Meade Veterans Administration Hospital, both inpatient and outpatient, from March of 1977 through the date of his first hearing. He was a hospital patient from November 5, 1977 to December 5, 1977.
the extensive factual record. 1 Cornella was born on February 19, 1929 and has an eleventh grade education. He has been primarily employed as a truck driver and heavy equipment operator throughout his life. Cornella has a long history of medical problems. When he was a teenager he fell out of a moving car and broke his back. Cornella broke his back again in 1956 when a tree fell on him while he was operating a bulldozer. In 1972 he reinjured his back while unloading a truck. As a result of severe muscle spasms in his lower back, he was hospitalized and underwent surgery. 2 From 1972 to 1975 Cornella was unable to work and received workmen's compensation benefits. Despite increasing difficulty from physical limitations and accompanying pain, Cornella did engage in his truck driving job from 1975 until August 13, 1977. On that date he experienced severe muscle spasms in his lower back while attempting to chain down a truckload of logs. Cornella did not work from August 13, 1977 to March, 1978. Between March and September of 1978, Cornella did attempt some truck driving activity, although it appears this activity was sporadic. 3 After September of 1978 Cornella's work activity was negligible
ALJ # 1 found that Cornella's complaints of pain were not credible, that Cornella had the residual functional capacity to engage in "light" truck driving activity and therefore found he could return to his former work. ALJ # 1 thus ruled Cornella was not disabled. 4 The Appeals Council affirmed and Cornella sought judicial review. The district court remanded for further development of the record, indicating In accordance with the remand order, a second administrative hearing was held on October 9, 1980, at which Cornella was represented by counsel. In addition to attempting to clarify his work activity from March to September of 1978, Cornella again emphasized his constant low back pain. He could stand only thirty minutes before having to get off his feet. He could no longer walk more than a couple of blocks. He stated he does not even try to bend over, that it bothers him to sit for very long, and that he cannot sleep well. He testified that both of his legs were numb and asleep at the hearing. Cornella's complaints of disabling pain were corroborated by testimony and depositions from his wife, daughters, mother, brother, a neighbor and his local minister.
the apparent lack of support in the record for ALJ # 1's findings.
In addition to the testimony given at the two administrative hearings, extensive medical evidence was submitted. In fact, it appears Cornella underwent numerous medical and psychiatric examinations by at least seven doctors. No attempt to detail this evidence will be made here. We observe only that we agree with the district court that the medical evidence as a whole supports Cornella's complaints of severe pain. 5 Cornella, 545 F.Supp. at 932.
ALJ # 2 ruled that Cornella was disabled but that his disability onset date was June 30, 1979. Cornella objected to this date contending that he has been disabled since August 13, 1977. The Appeals Council modified ALJ # 2's decision by setting his disability onset date at February 19, 1979. This date was arrived at by the Appeals Council through its application of the Medical-Vocational (M-V) Guidelines in Appendix 2 of the Secretary's Regulations. 20 C.F.R. Secs. 404.1501 et seq. Cornella again sought judicial review in district court. The court held that the Secretary's decision partially denying Cornella's claim was not supported by substantial evidence and that the Secretary's application of the M-V Guidelines was erroneous since the Guidelines are not to be mechanically applied to a claimant, such as Cornella, who suffers from non-exertional impairments. The court thus reversed and ordered the Secretary to pay Cornella full benefits. Only the subsequent denial of Cornella's application for attorneys' fees is at issue here.
Under federal law, attorneys' fees may be awarded against the United States only if such an award is specifically provided by statute. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975). The EAJA, effective October 1, 1981, represents another exception to the "American Rule" that litigants pay their own attorneys' fees. See, e.g., Spencer v. N.L.R.B., 712 F.2d 539, 545 (D.C.Cir.1983); Natural Resources Defense Council v. U.S.E.P.A., 703 F.2d 700, 704 (3d Cir.1983). Its primary purpose "is to diminish the deterrent effect of the expense involved in seeking review of, or defending against, unreasonable government action." Foley Const. Co. v. U.S. Army Corps of Engineers, 716 F.2d 1202, 1203 (8th Cir.1983) (citing H.R.Rep. No. 1418, 96th Cong., 2d Sess. 5-6, reprinted in 1980 U.S.Code Cong. & Ad.News 4953, 4984).
Under the EAJA a prevailing party may obtain attorneys' fees only where the position of the United States was not "substantially justified." 6 The test of whether There has been much discussion in the opinions construing the EAJA about which government position must be substantially justified, the government's litigation position or the agency action which made it necessary for a party to file suit. 8 The legislative history of the EAJA is inconclusive on which position is to be examined. Spencer, 712 F.2d at 549. We have reviewed the opinions on the subject and find that there are persuasive arguments supporting both the "underlying action" and the "litigation position" theories. See id. at 546. In Spencer the District of Columbia Circuit examined this precise question extensively and reasoned that the issue is academic in most circumstances. Id. at 551-52. Even though we examined the government's litigation position in Foley since that was the way the parties framed the issue on appeal, we recognized that "[i]n most cases 'it makes no functional difference how one conceives of the government's "position" ' because 'the litigation position We believe that such is the situation here. The government's litigation position is that the underlying agency position is legally justifiable, i.e., the Secretary's decisions denying Cornella disability benefits were correct. Therefore we must examine the evidence and law surrounding the Secretary's decisions to deny Cornella disability benefits in order to decide whether the government's defense of that denial was substantially justified.
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