De Walt v. Sullivan, Civ. A. No. 83-1194(JFG).

• Decision Date: 18 January 1991
• Docket Number: Civ. A. No. 83-1194(JFG).
• Citation: 756 F. Supp. 195
• Parties: Michelle DE WALT, Plaintiff, v. Louis B. SULLIVAN, Secretary Department of Health and Human Services, Defendant.
• Court: U.S. District Court — District of New Jersey

756 F. Supp. 195

Michelle DE WALT, Plaintiff, v. Louis B. SULLIVAN, Secretary Department of Health and Human Services, Defendant.

Civ. A. No. 83-1194(JFG).

United States District Court, D. New Jersey.

January 18, 1991.

Polonsky & Polonsky by Alan H. Polonsky, Collingswood, N.J., for plaintiff.

U.S. Atty. by Susan J. Steele, Sp. Asst. U.S. Atty., Newark, N.J., for defendant.

OPINION

GERRY, Chief Judge:

Plaintiff has filed an application for payment of attorney's fees under section 2412(d) of the Equal Access To Justice Act (EAJA), 28 U.S.C. § 2412(d), based upon an action filed on her behalf in 1983 which ultimately led to an award of Supplemental Security Income (SSI) benefits by an administrative law judge (ALJ) on March 7, 1990. Defendant opposes the award of fees and, in the alternative, argues that the hourly rate sought is excessive.

I. Facts and Procedural History

This case has a long history. We draw the following factual and procedural background from the court's Letter Opinion (Op.) of July 13, 1989: "Plaintiff was 27 years of age at the time of her initial administrative hearing in 1982 and has a high school education. She was last employed from July through December of 1975 as an assembly line worker at Tyco Corporation." Id. at 2.

Plaintiff originally filed an application for SSI benefits ... on April 5, 1982. Her claim was disapproved initially and upon reconsideration. A hearing before ALJ Paul H. Teitler was held on August 18, 1982, at which the plaintiff appeared pro se. The ALJ found that the plaintiff was ineligible for SSI under 42 U.S.C. §§ 1381, 1381a, and 1382c. Plaintiff appealed, and on January 19, 1983, the Appeals Council then remanded the case to the ALJ for a de novo hearing.

Id. at 1.

Plaintiff then filed this action on May 26, 1983. On March 13, 1984, the court remanded for the purpose of locating plaintiff's claims folder. A second hearing was held before the ALJ on August 23, 1984,

at which plaintiff again appeared without counsel. On January 29, 1985, the ALJ found that DeWalt was not disabled as defined by the Social Security Act at any time relevant to the application. The decision became final when the Appeals Council adopted the findings of the ALJ.

Id. Plaintiff then appealed to this court, but also filed another application for benefits. We remanded the case for further findings.

Upon remand plaintiff was awarded SSI benefits by an ALJ on March 7, 1990. The ALJ found that plaintiff was disabled as of July 17, 1982, based on her having satisfied as of that date the requirements of 20 C.F.R. Part 404, Subpart P, Appendix 1, § 10.10. Section 10.10A addresses obesity and a history of pain and limitation of motion in any weight bearing joint or spine, associated with arthritis. Id.

II. Legal Analysis

a) Standard for Award of Fees Under EAJA

EAJA entitles plaintiff to an award of fees "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). "The burden of proving the statutory concept of substantial justification is on the government." Edge v. Schweiker, 814 F.2d 125, 128 (3d Cir.1987).

The Supreme Court settled the definition of "substantially justified" in Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988). The term means

"justified in substance or in the main" — that is, justified to a degree that could satisfy a reasonable person. That is no different from the "reasonable basis both in law and fact" formulation adopted by the Ninth Circuit and the vast majority of other Courts of Appeals that have addressed this issue.

Id. The court cited Citizens Council of Delaware County v. Brinegar, 741 F.2d 584, 593 (3d Cir.1984) as one of those cases that adhere to "reasonable basis both in law and fact." Id.

Citizens Council relied on the articulation of a "reasonable basis in both law and fact" first set forth by the Third Circuit in Dougherty v. Lehman, 711 F.2d 555, 564 (3d Cir.1983). The government must:

First, show that there is a reasonable basis in truth for the facts alleged in the pleadings. If no such basis for the government's factual allegations exist, then the government's position may well be held not to be "substantially justified."

Second, the government must show that there exists a reasonable basis in law for the theory which it propounds. This is not to say that the government need demonstrate that there is a substantial probability that the legal theory advanced by it will succeed.

Finally, the government must show that the facts alleged will reasonably support the legal theory advanced. Thus, having met these requirements, if the government's legal theory, as applied to the facts, reasonably supports the Secretary's position, even though the government may not have ultimately prevailed, then the government will have proven that the "position of the United States was substantially justified." 28 U.S.C. § 2412(d)(1)(A).

Id. In sum, "to meets its burden, the government must show a reasonable basis in truth for the facts alleged, a reasonable basis in law for the theory it propounds, and a reasonable connection between the facts alleged and the legal theory advanced." Edge v. Schweiker, 814 F.2d at 128.

The government's "position" refers "to both the litigation position taken by the agency and the agency's conduct that was the subject of the litigation." Citizens Council of Delaware County v. Brinegar, 741 F.2d at 593; Dougherty v. Lehman, 711 F.2d 555, 563 n. 12 (3d Cir.1983); Natural Resources Defense Council, Inc. v. U.S. Environmental Protection Agency, 703 F.2d 700, 706-12 (3d Cir.1983) (Gibbons, J., opinion announcing the judgment of the court); id., at 714-17 (Thompson, J., concurring).

b) The Government's Position Was Not "Substantially Justified"

Upon remand the ALJ found that plaintiff, "as of July 17, 1982 ... weighed in excess of 258 pounds.... Her current weight is 425 pounds. The record reflects reports from Herbert Fichman, M.D., extending back to July 1982, documenting the fact that the claimant was suffering from osteoarthritis of the lumbosacral spine.... Her condition continues to be documented as ... consistent with the diagnosis of Dr. Fichman, in July 1982.... By virtue of her massive obesity and a history of osteoarthritis of the knees and lumbosacral spine, ... the claimant does in fact meet an appropriate listing found in Listings of Impairments in Appendix 1, Subpart P, Regulation No. 4." Decision of Alan M. Neff, ALJ, of March 7, 1990, at p. 2.

Defendant argues that "there was no evidence to conclude that plaintiff was suffering from arthritis of a weight bearing joint or the spine," and therefore "the Secretary reasonably concluded that plaintiff was not disabled." Defendant's Brief at 7. Moreover, to the extent the ALJ found plaintiff to have been disabled since July 1982, "the evidence upon which the ALJ awarded benefits was not, for the most part, compiled until after remand," and "plaintiff was found to be eligible for benefits based, at least, in part upon this new evidence. Accordingly, the Secretary was substantially justified in finding that plaintiff was not disabled." Id.

We disagree. The basis upon which the ALJ determined plaintiff to have been disabled was her obesity, coupled with a history of arthritis in her spine and knees. The ALJ relied upon a report by Dr. Fichman from 1982 that had always been part of the record to establish both obesity and arthritis in plaintiff's spine. The ALJ relied upon later medical reports submitted by Dr. Maslow and Dr. Shoemaker, but only to confirm Dr. Fichman's earlier findings regarding obesity and arthritis of the low back. The later reports referred also to arthritis in the knees, but the findings as to obesity and spinal arthritis were sufficient without more to meet the requirements of section 10.10. To meet that listing, "it must be established that the claimant suffered a history of pain and limitation of motion of any weight bearing joint or spine." Id. at 8 (emphasis added). Dr. Fichman's 1982 report and plaintiff's own testimony as to pain support the ALJ's finding of disability. Thus, to the extent that new evidence was considered, it merely confirmed former evidence sufficient in itself to demonstrate disability.

The question is whether the presence of such record evidence, long since available to the Secretary, which was found on remand to support a finding of disability, now bars a conclusion that the government's position was "substantially justified." We find that it does.

The court has been able to discover only one other case involving the award of EAJA fees where the claimant suffered from obesity and was found on remand to be disabled pursuant to section 10.10. See Rosado v. Bowen, 823 F.2d 40 (2d Cir. 1987). In Rosado, the court concluded that the government's position was substantially justified, because the award of disability benefits upon remand was based on new evidence, which "was far stronger and more detailed than that presented at the first hearing." Id. at 43. In contrast, "the evidence of her impairment was weak and undeveloped at the time of the initial hearing." Id.

Here, the evidence available to the ALJ at the first hearing in 1982 was the same evidence upon which ultimately claimant was awarded disability benefits in 1990. The government's position was not substantially justified.

c) Hourly Rate of Fees Requested

Under the EAJA, "the amount of fees awarded ... shall be based upon prevailing market rates for the kind and quality of the services furnished, except that ... attorney fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee." 28 U.S.C. § 2412(d)(2)(A)(ii) (emphasis added).

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