Meyers v. Heckler

• Decision Date: 12 November 1985
• Docket Number: No. C-1-84-539.,C-1-84-539.
• Citation: 625 F. Supp. 228
• Parties: James MEYERS, SSN: XXX-XX-XXXX, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Southern District of Ohio

625 F. Supp. 228

James MEYERS, SSN: XXX-XX-XXXX, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.

No. C-1-84-539.

United States District Court, S.D. Ohio, W.D.

November 12, 1985.

COPYRIGHT MATERIAL OMITTED

Michael J. Mooney, Cincinnati, Ohio, for plaintiff.

Joseph E. Kane, Asst. U.S. Atty., Columbus, Ohio, and Pat Hanley, Asst. U.S. Atty., Cincinnati, Ohio, for defendant.

ORDER GRANTING ATTORNEY'S FEES

SPIEGEL, District Judge.

I. INTRODUCTION

This matter is before the Court on plaintiff's motion for an award of costs and attorney's fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(A) (docs. 13, 16), in his successful appeal from the Secretary's denial of disability insurance and Supplemental Security Income (SSI) benefits. Alternatively counsel for plaintiff seeks an award under the Social Security Act (Act), 42 U.S.C. § 406(b)(1) (doc. 18), which permits award of an attorney's fee of up to twenty-five percent of plaintiff's past-due benefits. The Secretary opposes an award of attorney's fees pursuant to the EAJA on the grounds that her position was "substantially justified" (doc. 17), but does not oppose approval of a reasonable fee pursuant to 42 U.S.C. § 406(b)(1) (doc. 19).¹

In this Social Security case, plaintiff's counsel seeks fees pursuant both to EAJA, 28 U.S.C. § 2412(d)(1)(A),² and the Act, 42 U.S.C. § 406. Although both statutes exists for the purpose of awarding attorney's fees and costs, they differ substantially in several respects. Briefly, the EAJA provides that the attorney representing a prevailing claimant may recover, on his or her client's behalf, attorney's fees and costs in a civil action against the United States unless the position of the United States was "substantially justified" or special circumstances make an award unjust.³ Fees under the EAJA can only be awarded for services performed before a court, and not for services performed at the administrative level. Miller v. United States, 753 F.2d 270, 275 n. 3 (3d Cir.1985); Guthrie v. Schweiker, 718 F.2d 104, 108 (4th Cir.1983); Berman v. Schweiker, 713 F.2d 1290, 1296 (7th Cir.1983). In contrast, to merit an award of fees under the Act, an attorney need only have represented plaintiff successfully before the district court. Further, the Act, unlike the EAJA, permits an award of fees for work done both at the trial and administrative levels. 42 U.S.C. § 406(a), (b).

The question we must decide initially is whether attorney's fees may be awarded under both the EAJA and section 406 of the Act. At first blush, an affirmative answer would seem to effect double recovery. Recently, however, Judge Nickerson ruled otherwise in Eustache v. Secretary of Department of Health and Human Services, 601 F.Supp. 176, 178 (E.D.N. Y.1985). He observed a fundamental difference between the awards. Under section 406, the award comes out of the claimant's disability monies. But in the case of the EAJA, the award is authorized against the public fisc. Id. An application under the EAJA is deemed to be made on behalf of the claimant by counsel, rather than, as with section 406, by counsel "against" his or her client and on his or her own behalf. Id. Accordingly, any funds awarded pursuant to the EAJA serve as a reimbursement to the claimant for fees paid out of his or her disability award to his or her counsel.

Given the purposes of both statutes, we agree with Judge Nickerson's method of handling concurrent and/or consecutive fee petitions under the EAJA and section 406. To permit a fee award under the EAJA, assuming, of course, that the necessary standard is met, in addition to that allowed by the district court out of a claimant's past-due benefits, does no more than reimburse the claimant for his or her expenses and results in no windfall to the attorney. Such a scheme facilitates the purposes of the EAJA — that is, shifting a prevailing party's litigation expenses to the United States that that party has incurred while contesting unreasonable government action. See, e.g., Kerr v. Heckler, 575 F.Supp. 455, 456 (S.D.Ohio 1983).⁴

Our conclusion is fortified by the language inserted by Congress in the newly revised EAJA. See Equal Access to Justice Act, Extension and Amendment, Pub.L. No. 99-80, 99 Stat. 183 (1985). Section 3 of the Act specifically allows for an award of attorney's fees under both the EAJA and section 406. While that provision temporally is not applicable to the instant case,⁵ we nonetheless acknowledge it for purposes of Congressional intent on this question of law.

The obvious financial advantage to the claimant of an award under the EAJA has prompted one court to hold that attorneys must first proceed under the EAJA when appropriate. If the attorneys fail to do so, a reduction in the fee ultimately awarded under the Act is "highly appropriate." Taylor v. Heckler, 608 F.Supp. 1255, 1259 (D.N.J.1985). As of this writing, and until the Sixth Circuit directs otherwise, this Court will not consider it remiss to proceed under section 406 alone when petitioning for attorney's fees. We recognized in Kerr that very few cases arise in which the Secretary's position is not substantially justified. 575 F.Supp. at 458. Therefore, we feel that it is inappropriate at this time to mandate routine applications for fees under the EAJA.

We now proceed to determine whether the EAJA permits recovery of attorney's fees on these facts. The Court must examine whether the Secretary's position in the underlying litigation was "substantially justified" within the meaning of 28 U.S.C. § 2412(d)(1)(A). As we indicated in Kerr, the operational standard under the EAJA "is essentially one of reasonableness," and the pertinent inquiry is whether the position maintained by the Secretary had a reasonable basis in law and fact. 575 F.Supp. at 457. Our finding that the decision of the Administrative Law Judge (ALJ) was not supported by "substantial evidence" does not require automatically that we now find the Secretary's position not "substantially justified." Id. at 458. Although both tests are couched in terms of "reasonableness," an inquiry into "substantial evidence" and "substantial justification" are, without a doubt, distinct. Id.

For an insured claimant to be considered "disabled" within the meaning of the Act, he must be unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). Under the Act, a "physical or mental impairment" is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). A person is unable to engage in any substantial gainful activity only if the impairment(s) is (are) so severe that he is unable to perform his previous work and, considering his age, education, and work experience, also unable to engage in any other kind of substantial gainful work that exists in the national economy. 42 U.S.C. § 423(d)(2)(A) (disability insurance), 42 U.S.C. § 1382c(a)(3)(B) (SSI).

The Sixth Circuit has held that a determination of disability, as defined above, is to be considered pursuant to the following seven-step analysis:

1. Is the claimant currently engaged in substantial gainful activity? If yes, the claimant is not disabled. If no, proceed to Step 2. See 20 C.F.R. § 404.1520(b); 20 C.F.R. § 416.920(b).

2. Does the claimant have any medically determinable physical or mental impairment(s)? If yes, proceed to Step 3. If no, the claimant is not disabled. See 20 C.F.R. § 404.1508; 20 C.F.R. § 416.908.

3. Does the claimant have severe impairment(s) —i.e., any impairment(s) significantly limiting the claimant's physical or mental ability to do basic work activities? If yes, proceed to Step 4. If no, the claimant is not disabled. See 20 C.F.R. §§ 404.1520(c), 404.1521; 20 C.F.R. §§ 416.920(c), 416.921.

4. Can the claimant's severe impairment(s) be expected to result in death or last for a continuous period of at least 12 months? If yes, proceed to Step 5. If no, the claimant is not disabled. See 20 C.F.R. § 404.1509; 20 C.F.R. § 416.909.

5. Does the claimant have any impairment or combination of impairments meeting or equalling in severity an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Listing of Impairments)? If yes, the claimant is disabled. If no, proceed to Step 6. See 20 C.F.R. §§ 404.1520(d), 404.1526(a); 20 C.F.R. §§ 416.920(d), 416.926(a).

6. Can the claimant, despite his impairment(s), considering his residual functional capacity and the physical and mental demands of the work he has done in the past, still perform this kind of past relevant work? If yes, the claimant is not disabled. If no, proceed to Step 7. See 20 C.F.R. § 404.1520(e); 20 C.F.R. § 416.920(e).

7. Can the claimant, despite his impairment(s), considering his residual functional capacity, age, education, and past work experience, do other work — i.e., any other substantial gainful activity which exists in the national economy? If yes, the claimant is not disabled. If no, the claimant is disabled. See 20 C.F.R. §§ 404.1505(a), 404.1520(f)(1); 20 C.F.R. §§ 416.905(a), 416.920(f)(1).

Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.1984).

II. FACTUAL AND PROCEDURAL BACKGROUND

At the time of filing his application for disability and SSI benefits on March 21, 1983, plaintiff was fifty-eight years of age. He completed his education through the ninth grade. His past relevant work experience had been as a welding gun repairman at General Motors for twenty years, involving constant walking, standing, bending, reaching, and climbing of ladders. He frequently was required to lift spools of wire weighing between...