Zimmerman v. Schweiker, CV-82-2217.

• Decision Date: 05 December 1983
• Docket Number: No. CV-82-2217.,CV-82-2217.
• Parties: Rosalyn ZIMMERMAN, Plaintiff, v. Richard SCHWEIKER, Secretary, H.H.S., Defendant.
• Court: U.S. District Court — Eastern District of New York

575 F. Supp. 1436

Rosalyn ZIMMERMAN, Plaintiff, v. Richard SCHWEIKER, Secretary, H.H.S., Defendant.

No. CV-82-2217.

United States District Court, E.D. New York.

December 5, 1983.

Meltzer & Fishman by Harold Fishman, New York City, for plaintiff.

Raymond J. Dearie, U.S. Atty., E.D.N.Y., Brooklyn, N.Y., for defendant.

MEMORANDUM AND ORDER

WEINSTEIN, Chief Judge:

Plaintiff was denied disability benefits by the Secretary. This court reversed and ordered benefits. 42 U.S.C. §§ 416(i), 423. Plaintiff now applies for attorney's fees pursuant to the Equal Access to Justice Act. 28 U.S.C. § 2412(d). Since the government's position was unreasonable and without justification, fees are granted.

I. FACTS

Mrs. Zimmerman has endured pain and physical limitation for all of her adult life. At the age of 12, she had a low left thigh amputation as a result of a severe form of cancer. A prosthesis was fitted to the short stump that remained. Despite this severe handicap, she earned a master's degree and worked as an English teacher and guidance counselor.

In October 1980, the plaintiff, then 56 years old, was hit by an elevator door at her high school. Thrown to the floor, she suffered a concussion, her prosthesis was broken and she injured her right knee, back and elbows.

As a result of the accident, plaintiff has been suffering severe back pain. Her ability to move her lower torso and right knee is greatly limited. Refitting of her prosthesis was complicated by a steel support belt she must now wear that interferes with normal hip action, further restricting her movements. The brace causes pain and swelling in her right leg and makes any walking or climbing unbearably painful.

In spite of these adversities, plaintiff tried to return to her job. Her unsuccessful attempts to work only exacerbated her condition. She was cautioned by her doctors to remain at rest.

The Administrative Law Judge found plaintiff not disabled because her medical problems were "cured" and there was no recent medical evidence of pain. This finding is contradicted by the record which abounds with evidence of both harrowing pain and severe physical impairment.

On two occasions, in May 1981 and August 1981, the Board of Education's Medical Bureau found that plaintiff was unable to move her right leg, trunk and shoulder without experiencing pain and that "forward flexation of the trunk was impossible due to pain." Dr. Nadar Sharon, a consultant to the Secretary, reported in September 1981 that plaintiff moves "with much difficulty and pain." Her treating physician, Dr. Joseph R. Van Dyne, reported similar findings. In June 1981, he reported that as a result of the 1980 accident, plaintiff "has considerable difficulty in walking" and was experiencing pain in her right leg. In August 1981, after plaintiff's claim was initially denied, Dr. Van Dyne wrote that she suffers "severe pain when she attempts to walk up or down a curb." The record also contains a letter from Dr. Leo J. Koven noting that x-rays indicate a "congenital disability unrelated to the accident of 1980," that would, "account for the right lower extremity radiation of her pain." Finally, a report by Dr. Koven dated December 1981, finds continued pain and predicts that plaintiff's "gait and prosthesis problem" will not materially improve in the future.

Based on the record, the court reversed and remanded for computation of benefits. It is obvious that plaintiff is no malingerer. The refusal of the Secretary to grant benefits she was entitled to as a matter of law and fact imposed economic and emotional strain that certainly worsened when the government chose to litigate in this court.

II. LAW

The Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A), provides that attorney's fees should be awarded to a prevailing party in an action by or against the United States "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." The Act is applicable to judicial review actions brought under the Social Security Act. See H.Rep. No. 96-1418 at 12, 1980 U.S.Code Cong. & Admin.News 4953, 4991; McGill v. Secretary of Health and Human Services, 712 F.2d 28, 30 (2d Cir.1983); Guthrie v. Schweiker, 718 F.2d 104, 107 (4th Cir. 1983); Berman v. Schweiker, 713 F.2d 1290, 1295 (7th Cir.1983); Ceglia v. Schweiker, 566 F.Supp. 118, 123 (E.D.N.Y. 1983); San Filippo v. Secretary of Health and Human Services, 564 F.Supp. 173, 176 (E.D.N.Y.1983); Ocasio v. Schweiker, 540 F.Supp. 1320, 1323 (S.D.N.Y.1982).

An award of attorney's fees pursuant to the Act provides the incentive necessary to enable persons such as plaintiff to pursue benefits they legally deserve. See H.Rep. 96-1418 at 5-6, 1980 U.S.Code Cong. & Admin.News 4984. Fees will be awarded unless the government, which has the burden of proof on this matter, can show that its position was substantially justified or special circumstances make an award unjust. Ceglia v. Schweiker, 566 F.Supp. 118, 123 (E.D.N.Y.1983).

The House Committee report states that the test of whether the government was substantially justified "is essentially one of reasonableness." H.Rep. 96-1418 at 10, 1980 U.S.Code Cong. & Admin.News at 4989. The exact standard is unclear. Several courts have held that the government will be substantially justified if its position is reasonable in law and fact. See Hoang Ha v. Schweiker, 707 F.2d 1104, 1106 (9th Cir.1983); Dougherty v. Lehman, 711 F.2d 555, 564 (3d Cir.1983); Lonning v. Schweiker, 568 F.Supp. 1079, 1082 (E.D.Pa. 1983); Vega v. Schweiker, 558 F.Supp. 52, 54 (S.D.N.Y.1983); MacDonald v. Schweiker, 553 F.Supp. 536, 540 n. 1 (E.D.N.Y. 1982).

One may legitimately ask what reasonableness means in this context. Reasonableness by the standard of a layman is obviously useless as a guide. Some reasonable litigation-attorney standard seems implied. Such a hypothetical litigator might ask, "Is there any substantial chance of success for my client? Am I merely going through the motions of a suit when my investigation of the law and facts convinces me that my client would and should lose?"

Some courts have attempted to give content to the reasonableness test by holding that the government fails to meet the substantially justified standard when there is "no authority for its position," Jones v. Schweiker, 565 F.Supp. 52, 56 (W.D.Mich. 1983); it is "patently unsupported by substantial evidence," Ceglia v. Schweiker, 566 F.Supp. 118, 124 (E.D.N.Y.1983); "there is little or no evidence supporting its position," Hornal v. Schweiker, 551 F.Supp. 612, 617 (D.Tenn.1982); there is no "genuine dispute," Moholland v. Schweiker, 546 F.Supp. 383, 386 (D.N.H.1982); and its position is not "wholly free from doubt," Smith v. Schweiker, 563 F.Supp. 891, 893 (E.D.N.Y.1982).

Defendant's position is that the no "genuine dispute" standard is proper. This contention is predicated upon the fact that the language of section 2412 mirrors the language of Rule 37(a)(4) of the Federal Rules of Civil Procedure, which requires assessing of attorney's fees if the motion for an order compelling discovery was not "substantially justified." The Advisory Committee Notes to the Rules of Civil Procedure state that the standard under Rule 37 requires the moving party to prove that the opponent's position was not based on a genuine dispute. Advisory Committee Notes, 48 F.R.D. 459, 540 (1970). Support for this position is found in Smith v. Schweiker, 563 F.Supp. 891, 892 (E.D.N.Y. 1982), where the court viewed Congress's use of the "substantial justification" language of the Federal Rules in the Act as a signal that the "not genuine" standard should be applied. Accord Wolverton v. Schweiker, 533 F.Supp. 420, 424 (D.Idaho 1982). Contra Vazquez v. Secretary, No. 82-0182, slip op. (D.Mass. July 5, 1983); Ward v. Schweiker, 562 F.Supp. 1173, 1178 n. 4 (W.D.Mo.1983).

With deference to the judges applying a "no genuine dispute" test, it appears that this strict standard does not adequately implement Congress's attempt to reduce the economic imbalance between the government and an individual claimant. See H.Rep. 96-1418, at 10, 1980 U.S.Code Cong. & Admin.News 4988. Such a disparity, which may or may not exist in the usual discovery situation controlled by Rule 37, invariably exists in social security disability cases. In these cases an unemployed worker is pitted against the government of the United States. The discovery sanction standard would not noticeably reduce the claimant's litigation burden or appreciably encourage him or her to contest unfavorable determinations. See, e.g., H.Rep. 96-1418 at 9, U.S.Code Cong. & Admin.News 4988; Vega v. Schweiker, 558 F.Supp. 52, 54 n. 2 (S.D.N.Y.1983); Nunes-Correia v. Haig, 543 F.Supp. 812, 817 (D.D. C.1982).

Congress established a middle ground between mere proof that a party prevailed against the government and the proof that the government's position was "arbitrary, frivolous, unreasonable or groundless." H.Rep. 96-1418, at 14, 1980 U.S.Code Cong. & Admin.News 4993. The purpose of the Act was to reduce the deterrent effect presented by the high cost of litigation. McGill v. Secretary of Health and Human Services, 712 F.2d 28, 30 (2d Cir.1983). If successful claimants' fees were denied simply because some elements of the government's position were genuine, there would be few awards and little additional incentive for those claimants who might otherwise not contest an adverse determination.

To meet Congressional objectives, the plaintiff seeking an award of lawyers' fees against the government should not be required to show more than that the government's position was unreasonable in law or fact. If private counsel probably would have advised a client that the matter should not be litigated, then, a fortiori, it is unreasonable for the government to oppose the claim. In the instant case it is hard to believe that an attorney would have advised...