Hawkins v. Heckler, 83-1845.

• Citation: 608 F. Supp. 1201
• Decision Date: 14 May 1985
• Docket Number: No. 83-1845.,83-1845.
• Parties: Bobby J. HAWKINS, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services of the United States, Defendant.
• Court: U.S. District Court — District of Kansas

608 F. Supp. 1201

Bobby J. HAWKINS, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services of the United States, Defendant.

No. 83-1845.

United States District Court, D. Kansas.

May 14, 1985.

David Gray, Wichita, Kan., for plaintiff.

Stephen K. Lester, Asst. U.S. Atty., Wichita, Kan., for defendant.

MEMORANDUM OPINION AND ORDER

PATRICK F. KELLY, District Judge.

Plaintiff has filed an application for attorney fees pursuant to 28 U.S.C. § 2412 et seq., commonly known as the Equal Access to Justice Act (EAJA). The procedural status of this case is best summarized in this Court's Memorandum and Order of January 22, 1985 granting summary judgment to Plaintiff:

This is an action under 42 U.S.C. § 405(g) for judicial review of the decision of the Secretary of Health and Human Services terminating Plaintiff's entitlement to disability benefits under the Social Security Act. This matter originally came before this Court on Plaintiff's motion for summary judgment and alternative motion for remand, and the Secretary's motion to affirm the Secretary's decision. In a ruling filed September 24, 1984 this Court denied both motions for summary judgment and remanded the case to the Secretary with instructions to effectuate reconsideration by the Administrative Law Judge (ALJ). The Appeals Council submitted a Clarifying Order of Appeals Council dated October 19, 1984 in which it again reaffirmed the termination of Plaintiff's period of disability but failed to obtain reconsideration by the ALJ. 600 F.Supp. 832.

The authorities are in accord that EAJA applies to Social Security cases. This district has recently found that the EAJA does apply to Social Security cases. See, for example: Laine v. Heckler, 602 F.Supp. 333 (D.Kan.1985); Guthrie v. Schweiker, 718 F.2d 104 (4th Cir.1983); Watkins v. Harris, 566 F.Supp. 493 (E.D. Pa.1983); Jones v. Schweiker, 565 F.Supp. 52 (W.D.Mich.1983); Hornal v. Schweiker, 551 F.Supp. 612 (M.D.Tenn.1982); McDonald v. Schweiker, 551 F.Supp. 327 (N.D.Ind.1982); Moholland v. Schweiker, 546 F.Supp. 383 (D.N.H.1982); Shumate v. Harris, 544 F.Supp. 779 (W.D.N.C.1982); Ocasio v. Schweiker, 540 F.Supp. 1320 (S.D.N.Y.1982); Wolverton v. Schweiker, 533 F.Supp. 420 (D.Id.1982); Berman v. Schweiker, 531 F.Supp. 1149 (N.D.Ill.1982); Berman v. Schweiker, 713 F.2d 1290, 1295 (7th Cir.1983); McGill v. Secretary of Health and Human Services, 712 F.2d 28, 30 (2d Cir.1983); and Ceglia v. Schweiker, 566 F.Supp. 118, 123 (E.D.N.Y.1983).

The authors of 6 R.I.A. Social Security Coordinator, at § 51,285, further explain:

EAJA applications for attorney fees in social security cases before courts have been consistently opposed by the SSA on the ground that the Social Security Act provides the sole means by which a court may award attorneys' fees. Just as consistently, courts addressing the issue have rejected the SSA's position. The SSA bases its contention upon the EAJA language authorizing fees `except as otherwise specifically provided by statute.'

Courts analyzing the statutory provisions, however, have noted that the SSA's authority to award fees in social security cases is an exercise in limiting the amount of fee that an attorney may charge a claimant and is not an authorization to award fees against the government. Thus, the statutory language, limiting the applicability of fee shifting under the EAJA to cases not already provided by statute, is not applicable, and the jurisdiction conferred upon courts by the Act applies to social security cases.

The EAJA provides for an award of fees to the prevailing party unless the government can prove that its action was "substantially justified." The burden of proof is on the government to establish that its action was substantially justified. United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481, 1487 (10th Cir.1984), and Dougherty v. Lehman, 711 F.2d 555 (3rd Cir.1983).

The term "substantially justified" has been defined in this circuit in United States v. 2,116 Boxes of Boned Beef, supra at pages 1486-1487:

The law is clear that the test of substantial justification is essentially one of reasonableness in both law and fact. (citations omitted)

* * * * * *

The government must therefore show that there is a reasonable basis in truth for the facts alleged in the pleadings; that there exists a reasonable basis in law for the theory it propounds; and that the facts alleged will reasonably support the legal theory advanced.

See also Laine v. Heckler, supra, where this district applied this standard in awarding attorney fees in a Social Security disability case.

Courts reviewing EAJA petitions for attorney fees have based their determinations of "substantial justification" on the factors and reasoning found in the opinions of the deciding courts as well as examinations of the relevant documents filed by the parties. See: Spencer v. NLRB, 548 F.Supp. 256, 262 (D.D.C.1982); Moholland v. Schweiker, 546 F.Supp. 383, 386 (D.N.H. 1982); Nunes-Correia v. Haig, 543 F.Supp. 812, 818-819 (D.D.C.1982); Wolverton v. Schweiker, supra; Photo Data, Inc. v. Sawyer, 533 F.Supp. 348, 352 (D.D.C.1982); and Dougherty, supra.

In Hornal v. Schweiker, 551 F.Supp. 612 (M.D.Tenn.1982) the court awarded attorney fees under the EAJA to the plaintiff, finding that the defendant had relied upon a physician's examination that was incomplete as a basis for its denial of benefits and stated:

Given the previous findings by this Court and applying the standards set forth in the EAJA, the Court holds that the government has failed to carry its burden of showing substantial justification for its position.

In Ceglia v. Schweiker, 566 F.Supp. 118 (E.D.N.Y.1983), the plaintiff had provided considerable evidence proving her total disability. Notwithstanding, the government denied her benefits relying upon a consultative report of a physician who did not examine the plaintiff but reviewed the medical evidence of record. The Court stated:

The law is clear that the opinion of a physician who has never treated or examined the claimant is entitled to little weight, and generally cannot serve as substantial evidence supporting a finding of nondisability when the record contains detailed contradictory opinions by physicians who have examined or treated the claimant. See, e.g., Allen v. Weinberger, 552 F.2d 781 (7th Cir.1977); Landess v. Weinberger, 490 F.2d 1187 (8th Cir.1974); Browne v. Richardson, 468 F.2d 1003 (1st Cir.1972); Gudlis v. Califano, 452 F.Supp. 401 (N.D.Ill.1978). In the light of this clear precedent, the decision of the Secretary, resting as it did solely on the contradictory opinion of a non-examining physician, was patently unsupported by substantial evidence. This obvious defect in the Secretary's determination rendered the position of the United States in this litigation unreasonable, and hence not substantially justified.

In the present case, the Appeals Council refused to grant Plaintiff's request for review of the ALJ's decision. This Court ruled in its Memorandum and Order of September 24, 1984 that the Appeals Council's refusal to review in the face of the substantial new evidence presented to it was error. At that time this Court had no doubt that Plaintiff was disabled and that there was no substantial evidence to the contrary. However, this Court out of deference to the agency wanted to give the Secretary the opportunity to make a proper determination of its own rather than simply reverse the agency's ruling at that time. In the Memorandum and Order of January 22, 1985, this Court stated:

It was hoped that with the instructions contained in the remand of this case that the Secretary would reconsider this case in the proper and legal perspective. Instead, the Secretary has turned a deaf ear to a case of obvious disability. This attitude is shocking enough. But the Secretary has shown this Court no more respect nor concern for following the law than it has shown Plaintiff. This Court ordered the Secretary to include reconsideration by the ALJ as part of its proceedings pursuant to the remand of this case. The Secretary instead defied this order by conducting the reconsideration only through the Appeals Council. This defiance of the Court's order did not enter into the deliberations of the merits of this case, but this Court can not refrain from observing that such defiance indicates an arrogant administrative attitude that is either bent upon denying benefits no matter how meritorious the claim or a callousness and indifference that amounts to the same thing.

The Secretary's position lacks substantial justification first in her opposition in this court to Plaintiff's just claim after having knowledge of the new evidence that was presented to the Appeals Council and second in disobeying this court's order to refer the case to the ALJ for a new hearing. The Secretary's actions in this case are if anything more contemptuous than her actions in Ornelas v. Heckler, Unpublished Case No. 81-K-2049 (D.Colo.1984) where that court stated at 1-2:

If this were anything other than an agency of the United States government, I would have every one of those people the Appeals Council in here for contempt of court. I think their conduct is unconscionable and it's despicable. This case is one of the most outrageous examples of the abuse of governmental authority that I have encountered, not only since I have been on the bench but in 25 years in the law. It is an outrage. There is no evidence, there is no authority for what they have done.

The evidence shows neurological damage, mental retardation, pain, motor instability, and vocational incapacity. Two of their own hearing officers have come to the same conclusion and yet they base their decision out of thin air. The appeals council has no right in the face of the record that was made to make any finding on credibility, to make any finding of vocational capacity. It is dishonest, cynical and mendacious.

In Ornelas, the ...