Smith v. Heckler, 83-2101

• Decision Date: 16 July 1984
• Docket Number: No. 83-2101,83-2101
• Parties: Pence Mae SMITH, Appellant, v. Margaret M. HECKLER, Secretary of Health & Human Services, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 144

739 F.2d 144

6 Soc.Sec.Rep.Ser. 61

Pence Mae SMITH, Appellant, v. Margaret M. HECKLER, Secretary of Health & Human Services, Appellee.

No. 83-2101.

United States Court of Appeals Fourth Circuit.

Argued April 4, 1984.

Decided July 16, 1984.

Debora L. Clovis, Third Year Law Student (Richard L. North, University of Maryland School of Law, Clinical Law Program, Baltimore, Md., on brief), for appellant.

Anne F. Sirota, Social Sec. Div., Washington, D.C. (J. Frederick Motz, U.S. Atty., Glenda G. Gordon, Asst. U.S. Atty., Randolph W. Gaines, Deputy Asst. Gen. Counsel for Litigation, A. George Lowe, Chief, Disability Litigation Branch, Baltimore, Md., on brief), for appellee.

Before WINTER, Chief Judge, and HALL and SPROUSE, Circuit Judges.

K.K. HALL, Circuit Judge:

Pence Mae Smith appeals from an order of the district court, denying her request for attorney's fees under the Equal Access to Justice Act ("EAJA"). ¹ Smith prevailed below in the underlying action she brought against the Secretary of Health and Human Services (Secretary) to obtain social security benefits. We conclude that Smith is entitled to attorney's fees pursuant to the EAJA. Accordingly, we reverse and remand the case to the district court with directions to award appellant reasonable attorney's fees.

I.

On September 11, 1979, Smith applied for disability benefits under Social Security's Supplemental Security Income (SSI) program, ² alleging that she was unable to work due to back problems, high blood pressure, and a history of abdominal surgery. At the time of her application Smith was fifty-one years of age. She had a seventh-grade education and was previously employed as a hotel/motel housekeeper and domestic.

A hearing on Smith's application was held before an Administrative Law Judge (ALJ) in June, 1980. At this hearing, claimant, represented by counsel, testified that her physical complaints included stomach and leg problems, a back tumor, incapacitating pain in her stomach, nerves, high blood pressure and gastritis. She stated that her sister cooked and cleaned for her because she was unable to do so. Smith further stated that she could sit and stand for half an hour at a time and lift up to five pounds. She said that during the day she watched television and lay in bed. Smith's sister corroborated claimant's testimony.

The record reveals that Smith's primary impairment was a recurring hiatal hernia. Claimant underwent two major operations to repair her hernia in 1979 and 1980. According to a report submitted by her treating physician, John S. Braxton, M.D., Smith was completely disabled by her impairments. The ALJ nevertheless concluded that Smith was not disabled. He found claimant's testimony of incapacitating pain not credible and held that, in light of the medical evidence, she had no severe impairment which would prevent her from engaging in substantial gainful activity.

Following the ALJ's decision of August 20, 1980, Smith submitted to the Social Security Administration's Appeals Council new evidence from Dr. Braxton, and from Garth A.S. Samuels, M.D., a thoracic surgeon. This evidence indicated that her hiatal hernia might have recurred, in which case further surgery would be inevitable. The ALJ's decision denying SSI benefits was, however, approved by the Appeals Council on September 23, 1980, and became the final decision of the Secretary.

Smith appealed the Secretary's decision pro se to district court. In a memorandum opinion and order entered June 17, 1981, the district judge remanded the case to the Secretary for reconsideration because the Appeals Council had "completely failed to evaluate the new medical evidence," and because "the new evidence strongly suggests the necessity for further surgical procedure (and perhaps the ultimate failure of any surgical procedures) to cure plaintiff's hiatal hernia."

On remand, a supplemental hearing was held in November, 1981. Smith, again represented by counsel, submitted additional evidence, which documented that her hernia had recurred, causing an esophageal stricture with reflux. ³ According to this evidence, in February, 1981, and again in August, 1981, Smith underwent two additional surgical procedures, known as esophagoscopy and dilatation, to correct the stricture or narrowing of her esophagus. Dr. Braxton, Smith's treating physician, reconfirmed his opinion that Smith was disabled from performing regular and customary employment. In a report dated November 3, 1981, Dr. Samuels, Smith's surgeon, stated that she would need continued "medical supervision indefinitely" to relieve her recurring symptoms of vomiting, gagging, and dysphagia. ⁴

The additional evidence on remand also included a disability evaluation prepared by Thomas Pozefsky, M.D., who examined Smith at the request of the ALJ in August, 1981. Dr. Pozefsky confirmed Smith's diagnosis as "status post repair hiatal hernia with recurrent esophageal stricture," but noted that claimant was in no distress and that corrective surgical dilatation seemed to be effective. Dr. Pozefsky opined that Smith was capable of performing light work.

Relying in large part on Dr. Pozefsky's report, the ALJ issued his decision in December, 1981, concluding that Smith had not established a sufficiently severe impairment to disable her from performing her past relevant work as a hotel/motel housekeeper. Between the time of the November, 1981, hearing and February, 1982, Smith underwent two more surgical dilatations to alleviate her symptoms from the recurring hernia. Although aware of this information, the Appeals Council adopted the ALJ's recommended decision to deny benefits, labeling the evidence documenting Smith's third and fourth corrective surgeries "essentially cumulative."

Once again, Smith appealed from the Secretary's denial of benefits. The Secretary defended her decision as being supported by substantial evidence. The United States magistrate, to whom this matter was referred, and the district judge concluded otherwise.

Noting that Dr. Pozefsky's report "does not rule out further dilations on a recurring basis," the magistrate found that there is "no question that plaintiff's primary impairment meets the durational requirement of the Social Security Act," and concluded that Smith was unable to engage in her accustomed occupation. The magistrate also found that any further remand of this case was unwarranted, because the record established that Smith could engage in no more than sedentary work. Given her age, education, and previous work experience, she was, therefore, automatically entitled to disability benefits under the Secretary's medical-vocational guidelines or "grids." 20 C.F.R. Pt. 404, Supt.P., App. 2, Table No. 1, Rule 201.09.

The district judge accepted the magistrate's recommendation and ordered the Secretary to award benefits. He, nevertheless, denied Smith's post-judgment motion for attorney's fees under the EAJA on the ground that the Secretary's position in this litigation was substantially justified. From that order, Smith appeals.

II.

On appeal, Smith argues that the administrative record in this case provides no substantial justification for the defense of the Secretary's decision to deny benefits and that she is consequently entitled to attorney's fees under the EAJA. We agree.

The EAJA, 28 U.S.C. Sec. 2412(d)(1)(A) provides as follows:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action (other than cases sounding in tort) 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.

The purpose of this legislation was to " 'remove an obstacle to contesting unreasonable governmental action through litigation' posed by the expense involved in securing the vindication of a party's rights in the courts." Dougherty v. Lehman, 711 F.2d 555, 562 (3d Cir.1983), citing Goldhaber v. Foley, 698 F.2d 193, 195 (3d Cir.1983). According to the statute's legislative history, "[t]he test of whether or not a government action is substantially justified is essentially one of reasonableness. In order to defeat an award, the government must show that its case had a reasonable basis both in law and fact. Absent such a showing, fees should be awarded unless some other circumstances make an award unjust." ⁵

In Tyler Business Services, Inc. v. NLRB, 695 F.2d 73, 75 (4th Cir.1982), we noted that "the legislative history teaches that in cases 'where a party has had to engage in lengthy administrative proceedings before final vindication of his or her rights in the courts, the government should have to make a strong showing to demonstrate that its action was reasonable.' " (Citations omitted). In Guthrie v. Schweiker, 718 F.2d 104 (4th Cir.1983), this Court held that the attorney's fees provisions of the EAJA apply to services rendered in court in social security cases. ⁶ Guthrie established the following guidelines to aid district courts in determining whether EAJA attorney's fees are appropriate in a given social security case:

In the district court the government's position generally is established at the administrative level and judicial review is limited to consideration of the administrative record by cross motions for summary judgment. Therefore, the government's position in the district court normally would be substantially justified if, as is usual, the United States attorney does no more than rely on an arguably defensible administrative record. In such a situation, the EAJA would not require an award of attorney's fees. Moreover, entry of summary judgment for the claimant raises no presumption that the government's position was not substantially justified. See Tyler Business...