Thomas Mortensen v. Michael Astrue
Filing
UNPUBLISHED AUTHORED OPINION filed. Originating case number: 8:07-cv-00547-JFA Copies to all parties and the district court/agency. [998583445].. [10-1116]
Appeal: 10-1116
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Date Filed: 05/05/2011
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1116
THOMAS MORTENSEN,
Plaintiff - Appellant,
v.
MICHAEL
J.
ASTRUE,
Commissioner
substituted for JoAnne Barnhart,
of
Social
Security,
Defendant - Appellee,
and
SOCIAL SECURITY ADMINISTRATIVE RECORD,
Party Below.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Joseph F. Anderson, Jr., District
Judge. (8:07-cv-00547-JFA)
Argued:
March 23, 2011
Decided:
May 5, 2011
Before NIEMEYER and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished opinion.
Judge Niemeyer wrote the
opinion, in which Judge Davis and Senior Judge Hamilton joined.
ARGUED:
Charles Lee Martin, MARTIN & JONES, Decatur, Georgia,
for Appellant.
Marvin Jennings Caughman, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.
ON
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BRIEF:
Paul T. McChesney, Spartanburg, South Carolina, for
Appellant.
William N. Nettles, United States Attorney, Beth
Drake, First Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina; Dorrelyn K.
Dietrich, Special Assistant United States Attorney for the
District of South Carolina, John Jay Lee, Acting Regional Chief
Counsel, SOCIAL SECURITY ADMINISTRATION, Denver, Colorado, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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NIEMEYER, Circuit Judge:
Thomas
Mortensen,
who
suffers
from
degenerative
disc
disease, applied for Social Security disability benefits.
The
Social Security Administration denied his claim, and on appeal,
the district court reversed, concluding that the Social Security
Administration’s
evidence.
ruling
was
not
supported
by
substantial
Thereafter Mortensen filed a motion for attorneys
fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412(d), which provides that prevailing parties are entitled
to
their
attorneys
fees
“unless
the
court
finds
that
the
position of the United States was substantially justified.”
The
district court concluded that the Social Security Commissioner’s
position
was
Mortensen’s
substantially
motion
for
Mortensen now appeals.
justified
attorneys
and
fees.
accordingly
From
that
denied
order,
We affirm.
I
Beginning in 2004, Mortensen began to experience acute pain
in
his
lower
Mortensen’s
back
and
treating
Cunningham
“degenerative
found
disc
leg.
physician,
Mortensen’s complaints.
Dr.
left
Dr.
was
Darrell
initially
Cunningham,
skeptical
of
But following an inspection of an MRI,
that
Mortensen
disease.”
Dr.
suffered
Cunningham
from
a
eventually
concluded that Mortensen could occasionally lift five pounds,
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could stand and walk for one hour total per day; could grasp
with
both
upper
extremities,
but
not
reach,
push,
pull
or
perform fine manipulations of his hands; and could not operate
foot or leg controls.
Dr. Cunningham also referred Mortensen to Dr. Farook J.
Kidwai, a neurological specialist, who performed a series of
tests and diagnosed Mortensen as having “lumbar spondylosis with
discogenic
pain
and
early
radiculopathy.”
Following
his
assessment of Mortensen, Dr. Kidwai advised Mortensen to
avoid all activities that aggravate his symptoms.
In
particular, he should avoid repetitive bending and
twisting of his low back.
He should refrain from
prolonged sitting, standing, walking, stooping, or
driving for more than one-half hour at a time. After
each such period of activity, he should either change
his pace, or better yet, take a few minutes’ break if
at all possible. He should also not lift more than 20
pounds at a time.
Another assessment made subsequently by a third physician
was
substantially
in
line
with
the
assessment
made
by
Dr.
Kidwai.
Relying on Dr. Cunningham’s assessment, Mortensen filed a
claim for Social Security disability benefits in February 2005.
Following a hearing on his claim, an administrative law judge
(“ALJ”) denied Mortensen’s claim, based on two findings.
First, the ALJ discounted Dr. Cunningham’s diagnosis and
instead gave controlling weight to Dr. Kidwai’s opinion, which,
he felt was “more consistent with the record as a whole.”
4
The
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ALJ believed that he was entitled to do so because, while the
opinion of an applicant’s treating physician is usually entitled
to “controlling weight,” 20 C.F.R. § 416.927(d)(2), it can be
discounted if it is not supported by clinical evidence or is
inconsistent with other substantial evidence in the record, see
Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001).
ALJ’s
view,
supported
Dr.
Cunningham’s
objectively”
because
conclusions
Cunningham
were
relied
Mortensen’s subjective complaints of pain.
In the
“not
well
primarily
on
Other doctors, on
the other hand, had found that Mortensen was capable of a wider
range of activity.
Second, the ALJ found that while Mortensen suffered from a
legitimate injury, his claims regarding the resulting pain were
not credible.
This finding focused on perceived inconsistencies
between Mortensen’s statements about the effectiveness of the
treatments he received.
“nothing
point
had
that
relieved
morphine
For example, he told one doctor that
his
pain,”
injections
while
and
a
he
stated
at
another
drug
called
Bextra
had
helped.
Based
on
these
conclusions,
the
ALJ
asked
a
vocational
expert whether a person with the capabilities described by Dr.
Kidwai was disabled.
The expert concluded that such a person
would be capable of performing light work and therefore would
not be disabled.
But he added that a person would be disabled
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if
Document: 43
he
suffered
complained
Date Filed: 05/05/2011
from
of.
regarding
the
Having
his
pain
kind
of
already
not
Page: 6 of 12
pain
found
credible,
that
Mortensen
Mortensen’s
the
ALJ
had
testimony
concluded
that
Mortensen was not disabled.
The
Social
Security
Administration’s
Appeals
Council
ratified the ALJ’s opinion.
On appeal to the district court, a magistrate judge issued
a
report
opinion
and
recommendation
about
Mortensen’s
the
concluded
of
Dr.
Cunningham’s
was
not
weight
which
credibility
supported
that
the
ALJ’s
diagnosis
by
and
substantial
evidence and that Mortensen was entitled to disability benefits.
The
magistrate
judge
pointed
out
that
Dr.
Cunningham’s
conclusions were not based on Mortensen’s subjective statements
about pain, but instead on an MRI, which clearly identified a
degenerative
disc
disease
in
Mortensen’s
lower
back.
The
magistrate judge also concluded that Dr. Cunningham’s opinion
was consistent with Dr. Kidwai’s assessment in most respects
aside
from
the
Accordingly,
the
amount
of
weight
magistrate
Mortensen
judge
could
concluded
that
lift.
Dr.
Cunningham’s diagnosis was entitled to controlling weight.
As to the ALJ’s findings about Mortensen’s credibility, the
magistrate
judge
observed
that
the
ALJ’s
decision
had
over-
emphasized short breaks in Mortensen’s efforts to seek treatment
and had found inconsistencies in Mortensen’s statements about
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pain where none truly existed.
noted
that
the
ALJ
had
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Indeed, the magistrate judge
construed
Mortensen’s
testimony
“so
narrowly as to not account for the way in which people commonly
speak, particularly about health issues” and “appeared anxious
to identify some reason not to believe” Mortensen.
Neither Mortensen nor the Commissioner of Social Security
objected to the magistrate judge’s report and recommendation.
Accordingly, the district court adopted it wholesale.
reversed
the
Social
Security
Administration’s
The court
decision
and
remanded the case to the agency for an award of benefits.
As the prevailing party, Mortensen then filed a motion for
attorneys fees under the EAJA, which the Commissioner of Social
Security opposed.
prevail
on
The Commissioner argued that while he did not
the
“substantially
merits,
justified,”
his
so
position
that
a
was
fee
nonetheless
award
would
be
inappropriate under 28 U.S.C. § 2412(d)(1)(A).
The district court agreed with the Commissioner and denied
Mortensen
attorneys
fees,
concluding
that
the
Commissioner’s
position was substantially justified.
In the court’s view, it
was
to
reasonable
for
the
Commissioner
have
relied
on
Dr.
Kidwai’s opinion that Mortensen “could engage in light work” and
“to advocate that this opinion of a specialist should have been
given
more
weight
than
that
physician.”
7
of
[Mortensen’s]
treating
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This appeal followed.
II
Under
attorneys
the
fees
EAJA,
prevailing
“unless
the
parties
position of the United States was substantially justified.”
28
inclusive
(1990).
must
show
whole.”
finds
to
the
government
court
entitled
that
U.S.C. § 2412(d)(1)(A).
[district]
are
To take advantage of the exception, the
that
INS
v.
its
position
Jean,
496
was
justified
U.S.
154,
“as
159,
an
161-62
In other words, the substantial justification analysis
encompasses not only the government’s litigating positions, but
also
its
Crawford
positions
v.
in
Sullivan,
administrative
935
F.2d
655,
hearings
656-57
as
(4th
well.
Cir.
See
1991).
“There is no ‘presumption that the Government position was not
substantially justified, simply because it lost the case.’”
Id.
(quoting Tyler Bus. Servs., Inc. v. NLRB, 695 F.2d 73, 75 (4th
Cir. 1982)).
justified
so
Rather, the government’s position is substantially
long
as
“a
reasonable
person
could
think
it
correct, that is, if it has a reasonable basis in law and fact.”
Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988); see also
Crawford,
935
F.2d
at
658
(holding
that
the
government
is
substantially justified so long as it “rel[ies] on an arguably
defensible administrative record” (quoting Guthrie v. Schweiker,
718 F.2d 104, 108 (4th Cir. 1983))).
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We review the district court’s application of the EAJA’s
“substantially
justified”
exception
for
abuse
of
discretion.
See Pierce, 487 U.S. at 562-63; Crawford, 935 F.2d at 656.
Mortensen contends first that the Commissioner’s position
was not “substantially justified” because it was not supported
by substantial evidence.
Arguing for a per se rule, Mortensen
relies on a 1985 House of Representatives report which states
that
“[a]gency
substantial
action
evidence
is
found
virtually
substantially justified.”
(1985), reprinted
in
to
1985
be
.
.
certain
.
unsupported
not
to
have
by
been
H.R. Rep. No. 99-120, pt. 1, at 9-10
U.S.C.C.A.N.
132,
138.
Since
the
district court found that the ALJ’s decision was not supported
by substantial evidence, Mortensen argues that he is entitled to
attorneys fees as a matter of law.
We have, however, rejected this position.
As we stated,
Congress never intended to adopt this standard.
The
only support for such a rule is found in a few
sentences in the middle of a House Report.
If
Congress had wanted this broad standard, which exceeds
any judicial interpretation of the EAJA, it would have
amended the statute, as it did in modifying [other
parts of the Social Security Act].
Pullen v. Bowen, 820 F.2d 105, 108 (4th Cir. 1987), abrogated on
other grounds as recognized in Lively v. Bowen, 858 F.2d 177,
180 (4th Cir. 1988); see also Hadden v. Bowen, 851 F.2d 1266,
1268 (10th Cir. 1988) (declining to follow the quoted report
language); Broussard v. Bowen, 828 F.2d 310, 311-12 (5th Cir.
9
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1987)
(“The
Date Filed: 05/05/2011
substantial-evidence
Page: 10 of 12
standard
and
the
without-
reasonable-justification standard are neither semantic nor legal
equivalents”); FEC v. Rose, 806 F.2d 1081, 1089-90 (D.C. Cir.
1986) (labeling the House report language “spurious legislative
history”).
Accordingly, we reject Mortensen’s argument that he
is entitled to attorneys fees simply because the ALJ’s decision
was not supported by substantial evidence.
Mortensen
also
contends
that
the
Commissioner’s
position
was not substantially justified because he did not argue in the
district
court
that
justified.”
ALJ’s
decision
While
Commissioner’s
have
the
been
Mortensen
litigating
position
reasonable,
he
was
“substantially
acknowledges
in
the
maintains
that
that
district
the
the
court
may
Commissioner
nonetheless failed to defend the ALJ’s conclusions and thereby
failed
to
prove
that
the
government’s
position,
taken
as
a
whole, was “substantially justified.”
The record, however, fails to support Mortensen’s position.
The Commissioner adopted the ALJ’s decision before the Appeals
Council and repeated the same position in the district court.
See
Agency
Commissioner
Record
6-9;
specifically
J.A.
49-54.
defended
the
In
addition,
reasonableness
the
of
the
ALJ’s conclusions in his brief filed in the district court.
For
example, the Commissioner argued that “the ALJ reasonably noted
that the limitations Dr. Cunningham assessed were inconsistent
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with other opinions of record,” such that it was appropriate to
discount
Dr.
Cunningham’s
diagnosis.
The
Commissioner
also
asserted that inconsistencies in Mortensen’s testimony “provided
a
reasonable
subjective
basis
for
complaints”
the
of
ALJ
to
pain.
discredit
[Mortensen’s]
Notwithstanding
Mortensen’s
contention, it is apparent that the Commissioner did not fail to
defend the legitimacy of his positions “as an inclusive whole.”
Jean, 496 U.S. at 162.
At
bottom,
record.
Dr.
this
Kidwai
case
and
presents
another
a
mixed
specialist
administrative
concluded
that
Mortensen was capable of a slightly wider range of functional
capabilities
than
what
differences
of
Cunningham’s
diagnosis
performing
Dr.
opinion
“light
Cunningham
were
would
work,”
20
not
have
merely
found.
academic,
disqualified
C.F.R.
other diagnoses might not have.
had
These
as
Dr.
Mortensen
from
§ 404.1567(b),
while
the
Because there existed small,
but potentially meaningful inconsistencies in the medical record
and
in
Mortensen’s
various
statements
about
the
pain
he
was
experiencing, the district court did not abuse its discretion in
concluding that the Commissioner’s position was “substantially
justified.”
III
Finally,
Mortensen
devotes
a
significant
portion
of
his
brief to the question of whether the district courts could deny
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attorneys fees under the EAJA when the requested fees included
fees charged by an out-of-state attorney who was not licensed in
South Carolina, nor admitted to practice there pro hac vice.
We
do not, however, reach this issue in light of our conclusion
that the district court did not abuse its discretion in denying
attorneys
fees
because
the
Commissioner’s
position
was
substantially justified.
AFFIRMED
12
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