Gowen v. Bowen
| Decision Date | 03 January 1989 |
| Docket Number | 87-1995,Nos. 87-1994,s. 87-1994 |
| Parties | , 22 Soc.Sec.Rep.Ser. 691, Unempl.Ins.Rep. CCH 14142A Buford GOWEN, Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Appellee. Louie V. PITTMAN, Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Anthony W. Bartels, Jonesboro, Ark., for appellants.
Karen J. Sharp, Dallas, Tex., for appellee.
Before LAY, Chief Judge, BRIGHT, Senior Circuit Judge, and HANSON, * Senior District Judge.
Buford Gowen and Louie V. Pittman appeal the district court's 1 orders denying their petitions for attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. Sec. 2412(d)(1)(A) (Supp. IV 1986), and under the Social Security Act, 42 U.S.C. Sec. 406 (1982). For the reasons discussed below, we affirm in part, reverse in part, and remand.
Gowen was awarded disability insurance benefits commencing on March 8, 1976, due to rheumatoid arthritis and degenerative joint disease of the cervical spine. Gowen drew benefits until March of 1983 when the Secretary of Health and Human Services (Secretary) advised Gowen that evidence in his file indicated that his disability had ended and that his benefits would accordingly cease. After exhausting his administrative remedies, Gowen appealed the Secretary's decision to the district court.
Pittman was awarded disability insurance benefits commencing on March 31, 1972, due to arteriosclerotic heart disease with angina pectoris, hypertensive cardiovascular disease and obesity. Pittman drew benefits until June of 1983 when the Secretary notified Pittman that he no longer had an impairment that restricted his ability to work and that his benefits would accordingly cease. After this decision was affirmed at all levels of administrative review, Pittman appealed to the district court.
While Gowen's and Pittman's cases were pending in the district court, Congress passed the Social Security Disability Benefits Reform Act of 1984 (Reform Act of 1984), Pub.L. No. 98-460, 98 Stat. 1794 (). The Reform Act of 1984 required that disability-termination cases pending as of September 19, 1984, be remanded to the Secretary for reevaluation under the newly codified medical improvement standard. Both Pittman's and Gowen's cases were remanded and interim benefits were resumed. Following administrative proceedings on remand in which the medical improvement standard was applied, the Secretary found continuing entitlement to disability benefits in both cases and reinstated Gowen's and Pittman's benefits. The district court then dismissed both actions.
The claimants thereafter filed motions for attorney's fees under the EAJA and under the Social Security Act seeking the amount of one-fourth of their past-due benefits plus one-fourth of the interim benefits they received while their cases were pending the administrative decision on remand. Gowen and Pittman also sought fees for attorney's services rendered at the administrative level.
In each case, the district court awarded attorney's fees and costs pursuant to the Social Security Act in an amount not to exceed twenty-five percent of Gowen's and Pittman's past due benefits but denied fees from the interim benefits paid to Gowen and Pittman. The district court also denied attorney's fees under the EAJA finding that the Secretary's position was substantially justified. Finally, the district court held that it had no authority to award attorney's fees for representation before the Secretary at the administrative level. These appeals followed.
A prevailing party is entitled to an award of attorney's fees under the EAJA unless the Secretary can establish that its position was substantially justified, or unless special circumstances exist which make an award of attorney's fees unjust. 28 U.S.C. Sec. 2412(d)(1)(A); see also Jackson v. Bowen, 807 F.2d 127, 128 (8th Cir.1986) (per curiam); United States v. 1,378.65 Acres of Land, 794 F.2d 1313, 1317-18 (8th Cir.1986). The Secretary bears the burden of proving that its position was substantially justified at both the administrative and litigation levels. 28 U.S.C. Sec. 2412(d)(2)(D) (Supp. IV 1986); Jackson, 807 F.2d at 128; Herron v. Bowen, 788 F.2d 1127, 1130 (5th Cir.1986); Keasler v. United States, 766 F.2d 1227, 1231 (8th Cir.1985).
For the Secretary's position to be substantially justified, the Secretary "must show not merely that its position was marginally reasonable; its position must be clearly reasonable, well founded in law and fact, solid though not necessarily correct." 1,378.65 Acres of Land, 794 F.2d at 1318 (footnote omitted). As indicated, the district court concluded that the Secretary's position in Gowen's case and Pittman's case was substantially justified and therefore denied attorney's fees under the EAJA. We affirm the decision of the district court in Pittman's case. We reverse, however, with the district court's decision in Gowen's case. 2 We also grant fees out of interim benefits.
Gowen was initially awarded disability insurance benefits on March 8, 1976, due to rheumatoid arthritis and degenerative joint disease of the cervical spine. The record demonstrates that Gowen was treated at the Veterans Administration Hospital from 1975 to 1983 for his arthritis and also for a respiratory condition. Following a periodic review, Gowen was advised by the Secretary that his disability had ended in March of 1983 and his benefits were ceased. In determining that Gowen no longer was disabled, the Secretary considered the medical reports from Gowen's treatment at the Veterans Administration Hospital and a consultative report from Dr. O.H. Clopton who had performed a consultative examination of Gowen on February 23, 1983. In his report, dated February 25, 1983, Dr. Clopton stated that Gowen was suffering from rheumatoid arthritis, osteoarthritis, chronic obstructive lung disease with some moderate restrictive component and possible asbestosis.
At the administrative hearing held on July 19, 1983, Gowen testified that he was compelled to quit working in 1975 due to his arthritis. Gowen testified that he suffered from dizziness, headaches, arthritic pain and breathing difficulties. He also stated that he was unable to grip objects because his hands were swollen. Gowen also testified that he went to the Veterans Administration Hospital every two or three months for outpatient treatment and that he took Naproxen and Acetaminophen for pain. Gowen also testified that his daily activities were restricted to making coffee, occasionally washing dishes, taking walks, watching television, and helping his children with their homework. Finally, Gowen stated that he does not sleep well.
The Administrative Law Judge (ALJ) determined that substantial evidence did not exist in the record to support a finding that Gowen continued to be disabled as defined in the Social Security Act because he had residual functional capacity to perform his past relevant work as a laundry delivery person. 20 C.F.R. Sec. 404.1520(e) (1987); see also Metcalf v. Heckler, 800 F.2d 793, 797 (8th Cir.1986); Watson v. Califano, 618 F.2d 18, 19 (8th Cir.1980). In doing so, the ALJ stated that Gowen's limitation of motion, arthritic changes, restrictive impairment, and arthritis, "while obviously vexing to him," were, in essence, rather moderate in severity.
Following the ALJ's decision, Gowen saw Dr. John D. Ashley at his attorney's behest. In his report, dated October 1, 1983, Dr. Ashley diagnosed Gowen as suffering from generalized rheumatoid arthritis with possible secondary hypertrophic arthritis, spondylosis with degenerative joint disease involving four intervertebral spaces, osteo and rheumatoid arthritis of the lumbar spine, and asbestosis with diminished vital capacity secondary to asbestos exposure. Although Dr. Ashley stated that Gowen's asbestosis would not by itself preclude Gowen from engaging in gainful activity, he did express the opinion that Gowen was totally and permanently disabled by rheumatoid arthritis. The Appeals Council reviewed Dr. Ashley's report but concluded that there was no basis for granting Gowen's request for review of the ALJ's decision. Gowen then submitted progress notes from the Veterans Administration indicating that Gowen visited the Veterans Administration Hospital on a continuing basis for treatment of his restrictive impairment and arthritis. Again, the Appeals Council refused to review the ALJ's decision.
Although the Secretary determined that Gowen had the residual functional capacity to perform his past relevant work, the record demonstrates that the Secretary had no justification whatsoever in terminating Gowen's benefits after eight years of entitlement. The only evidence which remotely supports the Secretary's decision is the February 25, 1983, report of Dr. Clopton, a government-paid physician who examined Gowen on only one occasion. Although Dr. Clopton opines that Gowen's arthritis and limitation of motion were moderate in severity, Dr. Clopton does not, in any way, express the opinion that Gowen no longer was totally and permanently disabled. Conversely, as indicated, Dr. Clopton states that Gowen continued to suffer from rheumatoid arthritis, osteoarthritis, chronic obstructive lung disease and possible asbestosis.
We find the Secretary has disregarded the overwhelming evidence in the record including Gowen's testimony, the report of Dr. Ashley and the progress notes from the Veterans Administration demonstrating Gowen's continuing disability. 42 U.S.C. Sec. 423(d)(2)(C); see also Gamber v. Bowen, 823 F.2d 242, 245 (8th Cir.1987); Cornella v....
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