Cummings v. Sullivan

• Decision Date: 10 December 1991
• Docket Number: No. 90-2310,90-2310
• Citation: 950 F.2d 492
• Parties: , Unempl.Ins.Rep. (CCH) P 16427A, 2 NDLR P 215 Dorothy A. CUMMINGS, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 492

950 F.2d 492

35 Soc.Sec.Rep.Ser. 612, Unempl.Ins.Rep. (CCH) P 16427A,

2 NDLR P 215

Dorothy A. CUMMINGS, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human

Services, Defendant-Appellee.

No. 90-2310.

United States Court of Appeals,

Seventh Circuit.

Argued Feb. 13, 1991.

Decided Dec. 10, 1991.

Frederick J. Daley (argued) and Dorie Budlow, Chicago, Ill., for plaintiff-appellant.

Margaret C. Gordon, Asst. U.S. Atty., Craig A. Oswald, Office of the U.S. Atty., Crim. Div., and Gary A. Sultz (argued), Dept. of Health and Human Services, Region V, Office of the Gen. Counsel, Chicago, Ill., for defendant-appellee.

Before MANION and KANNE, Circuit Judges, and GRANT, Senior District Judge. ^*

GRANT, Senior District Judge.

In 1985 Dorothy Cummings sought social security disability benefits under 42 U.S.C. §§ 416(i) and 423(d). After numerous administrative and judicial reviews of her application, Cummings was finally granted all the relief she had initially requested. The claimant then filed for attorney's fees under the Equal Access to Justice Act [EAJA], 28 U.S.C. § 2412. We have been asked to review the district court's denial of those fees. For the reasons presented below, we affirm the decision of the district court.

I. BACKGROUND

Dorothy Cummings applied for disability benefits after the injuries she suffered in an automobile accident left her unable to work. Twice in 1985 her application was denied by the Social Security Administration of the Department of Health and Human Services. In January 1986 Administrative Law Judge [ALJ] Allyn Brooks approved benefits for the period of September 25, 1983 (the date of her accident) through January 27, 1986 (the date of the administrative hearing). However, based on recent medical test results by Cummings' treating physician, the ALJ concluded that the claimant had regained the capacity to perform a wide range of sedentary work and therefore was no longer disabled within the meaning of the Social Security Act. ¹

Cummings sought review of the ALJ's determination of no present disability before the Appeals Council. With her request she submitted new evidence, reports by a psychologist and vocational expert, supporting her claim of continued disability. However, the Appeals Council declined the reconsideration, finding there was no basis for review under the regulations. Cummings then brought an action for review of that decision in the United States District Court for the Northern District of Illinois.

The district court remanded the case to the Appeals Council, requiring consideration of the new reports filed by Cummings. See Cummings v. Bowen, 677 F.Supp. 975 (N.D.Ill.1988). However, it also made several findings concerning the ALJ's analysis of Cummings' disability claims. It found no patent error in the ALJ's credibility assessment of Cummings' pain testimony, id. at 981, and determined that the ALJ's findings on Cummings' medical conditions (her standing/sitting limitations) were supported by substantial evidence in the record. Id. at 982. The court felt it was a "close question" whether there had been a sufficient showing of available jobs that Cummings could perform. Suggesting that a vocational assessment would have been preferable, the court nevertheless stated that it "would be reluctant to hold a claimant disabled based on the ALJ's failure to consult a vocational specialist in these circumstances." Id. It remanded the case specifically for review of new evidence, but proposed that the Appeals Council "may choose to obtain the opinion of a vocational specialist if it deems that necessary on the record then before it." Id.

The Appeals Council vacated its earlier order and remanded the case to an ALJ for consideration of the new evidence previously tendered and for a supplemental hearing at which it required the following additional evidence: the testimony of a vocational expert; the results of psychological, psychiatric, and orthopedic examinations; and a medical assessment of the claimant's ability to perform work-related physical activities. On November 28, 1989, ALJ Richard J. Murphy stated that the first ALJ report was well-founded. He then found that Cummings had been disabled since her accident and, because of current severe mental impairments and other limitations, continued to be under a "disability," as defined in the Social Security Act, 20 C.F.R. § 404.1594(f)(8).

On January 24, 1990, Cummings filed a motion for attorney's fees under the Equal Access to Justice Act [EAJA], 28 U.S.C. § 2412(d)(1)(A). The defendant Secretary of Health and Human Services [Secretary] opposed the motion on the ground that his position in the litigation was "substantially justified." On February 28, 1990, the court denied Cummings' motion for EAJA fees. Judge Shadur pointed out that, in his review of the merits of Cummings' case, he had rejected two of her arguments and found the third one a close question; the remand was based only on the Appeals Council's failure to consider new and material evidence. The court's denial of the EAJA application was based on its finding that the government's position, although ultimately unsuccessful, was "substantially justified" as defined in Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988).

On April 11, 1990, the district court denied Cummings' motion to alter or amend the judgment. This appeal followed.

II. DISCUSSION

Section 2412(d)(1)(A) of Title 28, the EAJA, provides:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

In Commissioner, I.N.S. v. Jean, 496 U.S. 154, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990), the Supreme Court has summarized the statutory conditions mandated in EAJA fee determinations:

Thus, eligibility for a fee award in any civil action requires: (1) that the claimant be a "prevailing party" ²; (2) that the Government's position was not "substantially justified"; (3) that no "special circumstances make an award unjust" ³; and, (4) pursuant to 28 U.S.C. § 2412(d)(1)(B), that any fee application be submitted to the court within 30 days of final judgment in the action and be supported by an itemized statement. ⁴

Id. 110 S.Ct. at 2319. Claimant Cummings has challenged on appeal only the second requirement by asserting that the district court erred in finding that the Secretary's position was substantially justified.

The question of the government's "substantial justification" is reviewed on appeal under the deferential abuse of discretion standard. Pierce v. Underwood, 487 U.S. at 562-63, 108 S.Ct. at 2548-49; Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 934 (7th Cir.1989). To meet its burden of proof the government must establish that its position, "the position of the United States," had a reasonable basis in law and fact. Phil Smidt & Son, Inc. v. N.L.R.B., 810 F.2d 638, 642 (7th Cir.1987); Ferrell v. Pierce, 743 F.2d 454, 466 (7th Cir.1984). We are asked herein to review what the "position of the United States" encompasses and whether the United States adequately proved that its position was "substantially justified."

A. "Position of the United States"

Both in the district court and on appeal Cummings asserted that the "position of the United States" refers broadly to the actions of the government, the agency, the Secretary, the ALJ and the Appeals Council. She argued that the error of the Appeals Council, which failed to review the new evidence submitted by Cummings, led directly to litigation in the district court, and that the Council's "position" was not substantially justified.

The district court rejected that argument. It distinguished two roles of the government, as litigator and as adjudicator; it then found that the "substantial justification" test is not applied to the "decisional body, the one that stands in the same posture that I do." (Transcript of April 11, 1990 hearing, at 4.)

To determine who is the "United States" we begin with the definitions in the EAJA statute itself.

(C) "United States" includes any agency and any official of the United States acting in his or her official capacity;

(D) "position of the United States" means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based; except that fees and expenses may not be awarded to a party for any portion of the litigation in which the party has unreasonably protracted the proceedings.

28 U.S.C. § 2412(d)(2)(C) and (D) (emphasis added). The statute requires a court to determine the substantial justification of the government's present and past stances on the basis of both the court and agency records:

... Whether or not the position of the United States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based ) which is made in the civil action for which fees and other expenses are sought.

28 U.S.C. § 2412(d)(1)(B) (emphasis added). ⁵

The Supreme Court recently clarified the parameters of the term "position" in Jean:

The fact that the "position" is again denominated in the singular, although it may encompass both the agency's prelitigation conduct and the Department of Justice's subsequent litigation positions, buttresses the conclusion that only one threshold determination for the entire civil...