Estate of Duplissis v. Bowen, Civ. No. 83-0285 P.

• Decision Date: 16 July 1986
• Docket Number: Civ. No. 83-0285 P.
• Citation: 640 F. Supp. 842
• Parties: ESTATE OF Romeo DUPLISSIS, Plaintiff, v. Otis R. BOWEN, M.D., Secretary, United States Department of Health and Human Services, Defendant.
• Court: U.S. District Court — District of Maine

640 F. Supp. 842

ESTATE OF Romeo DUPLISSIS, Plaintiff, v. Otis R. BOWEN, M.D., Secretary, United States Department of Health and Human Services, Defendant.

Civ. No. 83-0285 P.

United States District Court, D. Maine.

July 16, 1986.

Michael A. Bell, Martha E. Geores, Bell & Geores, Portland, Me., for plaintiff.

Paula D. Silsby, Asst. U.S. Atty., Portland, Me., for defendant.

ORDER GRANTING PLAINTIFF'S MOTION FOR ATTORNEY'S FEES

GENE CARTER, District Judge.

This is an appeal from an Order of the Magistrate denying Plaintiff's application for attorney's fees and costs pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. The Court grants Plaintiff's appeal and awards fees under the EAJA.

I. History of the Case

The claimant in this action, Romeo Duplissis, now deceased, initially applied for disability insurance benefits on June 7, 1982. After a hearing, the Administrative Law Judge found that Mr. Duplissis was disabled as defined in the Social Security Act and was entitled to benefits commencing January 1, 1982. After a discussion of the evidence, the ALJ enumerated seventeen findings in support of his conclusion that Mr. Duplissis was entitled to benefits, including that "the medical evidence establishes that since January, 1982, the claimant has had severe osteoarthritis, hypertension, chronic obstructive pulmonary disease, anxiety, depression, and a personality disorder." Record at 21. The ALJ found that Mr. Duplissis was unable to perform his former unskilled work and could perform only sedentary work, id., and, therefore, because of his age and education level, the medical vocational guidelines directed a finding of disability. Id., 19, 21.

The Appeals Council reversed, finding that Mr. Duplissis did not have a severe impairment. It further found that his "allegation of not being able to work due to pain in his back, hips, ribs, buttocks and legs is not credible as it was not supported by the clinical and diagnostic findings of record." Record at 13. The Appeals Council decision constituted the final decision of the Secretary.

Mr. Duplissis appealed to this Court, which, in an opinion by the United States Magistrate, reversed and remanded the action to the Secretary on two grounds. Duplissis v. Heckler, Civ. No. 83-0285-P (D. Me. July 24, 1984) (Order) at 9. The first concerned the Secretary's treatment of the evidence of pain. The Magistrate found that the Secretary did not have substantial evidence undercutting the reliability of the Plaintiff's testimony and, therefore, did not have sufficient grounds for rejecting the Administrative Law Judge's conclusion that Mr. Duplissis' testimony was credible. Order at 5. The Magistrate found to be reasonable, under the controlling precedent at the time of its decision, the Secretary's position that pain alone could not be disabling in the absence of a medical condition which could reasonably be expected to produce such pain. Id. at 7. However, the Magistrate found that under Bishop v. Secretary of Health and Human Services, Civ. No. 82-0388-P (D.Me. Nov. 2, 1983) (Order Remanding Cause to Secretary), decided after the Secretary's first decision in this case, the Secretary's regulatory interpretation was incorrect. The Magistrate determined that Bishop required the agency to evaluate a claimant's pain apart from any underlying physiological disorder.

As a separate basis for remand, the Magistrate found that the Appeals Council's findings and conclusions concerning Mr. Duplissis' emotional problems "lacked the requisite particularity to enable meaningful judicial review." Order at 8. The Magistrate found that the Appeals Council did not properly apply the regulation listing basic work activities in determining the severity of the emotional impairment, id., stating "the psychologist's evaluation obviously suggests limits on Mr. Duplissis' capabilities which, if correct, contradict the Appeals Council's decision that the Plaintiff's emotional condition is not severe ... The Appeals Council has pointed to no evidence contrary to the psychologist's evaluation." Id. at 9. Upon remand, the ALJ reaffirmed his original findings that the Plaintiff was disabled without conducting an additional evidentiary hearing, and that decision became the final decision of the Secretary.

II. Decision Below and Issue on Appeal

Subsequent to the favorable decision after remand, Plaintiff applied to this Court for attorney's fees pursuant to EAJA. The Magistrate denied the application on the basis that the Secretary's position was substantially justified¹ because the order of remand was largely based on a court opinion rendered after the Secretary's decision. In addition, the Magistrate relied on Congress' subsequent codification into the Social Security Act of the Secretary's original position, which was that a claimant must present evidence of an underlying physical disorder in order to be found disabled based upon symptoms of pain. 42 U.S.C. § 423(d)(5)(A) (West Supp.1986).

In appealing the denial of fees, the Plaintiff makes the following arguments: (1) the Magistrate applied an erroneously lax standard because the Secretary failed to meet his burden on issues other than the assessment of pain as a disabling condition; (2) even if judicial precedent, decided subsequent to the Secretary's decision regarding the degree to which pain itself affects a claimant's ability to work was the sole basis for remand, the Secretary applied a fundamentally erroneous legal standard in this case because he disregarded medically determinable impairments which could reasonably explain Plaintiff's pain; (3) the conflict perceived by the Magistrate between judicial precedent and the Secretary's policy is based on nonacquiescence to court precedent.

III. Legal Standard for the Award of Fees Under EAJA: Substantial Justification

In order to be substantially justified, the Government must show a reasonable basis for facts alleged, a reasonable basis in law for the theory advanced, and a reasonable connection between the two. Washington v. Heckler, 756 F.2d 959, 961 (3d Cir.1985); Aldrich v. Heckler, 609 F.Supp. 863 (D.Me.1985). As to factual determinations, the Secretary's burden is not met simply by a showing of "some evidence" but by a strong showing that his position was justified. Washington v. Heckler, 756 F.2d at 961; Anderson v. Heckler, 756 F.2d 1011, 1013 (4th Cir.1985); Aldrich, 609 F.Supp. at 865.

Both the Secretary's litigation position and administrative denial of benefits are to be considered the Secretary's "position" for purposes of a fee application under EAJA. Herron v. Bowen, 788 F.2d 1127, 1130 (5th Cir.1986). See H.Rep. No. 120, 99th Cong., 1st Sess., 12, reprinted in 1985 U.S. Code Cong. & Ad. News, 132, 140. It is the Government's burden to show that its position at every stage of the proceedings was substantially justified. Herron, 788 F.2d at 1130. When the Secretary's position at one stage of litigation is substantially justified, but at another stage unjustified, fees may be awarded for work incurred for the portion of the proceeding resulting from the Secretary's unjustified position. Porter v. Heckler, 780 F.2d 920, 921 (11th Cir.1986). The Court must examine the Secretary's position regarding each claim and in each phase. Id. at 922.

IV. Discussion

Plaintiff argues that the Magistrate applied an erroneously lax standard in determining that the Secretary was substantially justified because the order of remand in this case identified errors other than the Secretary's failure to properly assess Plaintiff's pain as bases for remand. In particular, Plaintiff argues, that order contained a separate ground for remand based on Plaintiff's mental impairments. The Magistrate's opinion denying Plaintiff's fee award does not discuss this second basis of the decision.

The Magistrate may have omitted discussion of the Secretary's position with regard to the Plaintiff's psychological impairment on the ostensible basis that Plaintiff was not a prevailing party on that issue. Technically, this is so. While the ALJ reaffirmed his finding, after remand, that the Plaintiff's psychological impairment was severe, he ultimately based his conclusion that Plaintiff was entitled to benefits on exertional factors only. The ALJ did not find it necessary to carry the issue of Plaintiff's psychological impairment through the five-step disability analysis because 20 C.F. R.App. 2, § 200.00(e)(2) of the Secretary's regulations provides that when an individual suffers impairments resulting in both exertional and nonexertional limitations, the medical-vocational guidelines are to be applied to the exertional impairment first. In this case, the positive determination based on exertional factors obviated the need for a complete analysis of the Plaintiff's disability due to a mental impairment.

However, for purposes of a fee award under the Equal Access to Justice Act, a party may be deemed to be a prevailing party even if he does not ultimately prevail on all issues. Martin v. Lauer, 562 F.Supp. 503, 505 (D.D.C.1983), aff'd in part, rev'd in part on other grounds, 740 F.2d 36 (D.C. Cir.1984); see also Garrity v. Sununu, 752 F.2d 727, 734 (1st Cir.1984). Plaintiffs may be considered "prevailing parties" for attorneys' fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the party sought in bringing suit. See Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983). A social security claimant prevails when it is determined that he or she is entitled to benefits. McGill v. Secretary of Health and Human Services, 712 F.2d 28, 31-32 (2d Cir.1983). See also Conservation Law Foundation of New England v. Secretary of the Interior, 790 F.2d 965, 968 (1st Cir.1986). As the Secretary concedes, there is no question that Mr. Duplissis was a prevailing party in this litigation. Therefore, each of the Secretary's...