Maurice Meyer, III v. Michael Astrue

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 3:08-cv-03828-JFA. [999372948]. [13-1700]

Appeal: 13-1700

Doc: 39

Filed: 06/10/2014

Pg: 1 of 14

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1700

MAURICE E. MEYER, III,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Acting
Security Administration,

Commissioner

of

the

Social

Defendant - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:08-cv-03828-JFA)

Argued:

May 14, 2014

Decided:

June 10, 2014

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge King and Judge Duncan joined.

ARGUED: Robertson H. Wendt, Jr., LAW OFFICES OF ROBERTSON WENDT,
North Charleston, South Carolina, for Appellant.
Jennifer
Randall, SOCIAL SECURITY ADMINISTRATION, Denver, Colorado, for
Appellee. ON BRIEF: William N. Nettles, United States Attorney,
Marshall Prince, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Appeal: 13-1700

Doc: 39

Filed: 06/10/2014

Pg: 2 of 14

DIANA GRIBBON MOTZ, Circuit Judge:
Social Security claimant Maurice Meyer appeals the district
court’s denial of his motion for attorney’s fees under the Equal
Access to Justice Act (“the Act”).

The Act provides that a

party who prevails in litigation against the United States is
entitled to an award of attorney’s fees unless “the position of
the

United

States

was

substantially

circumstances make an award unjust.”
The

district

court

determined

justified”

or

“special

28 U.S.C. § 2412(d)(1)(A).

that

Meyer

prevailed

in

his

lawsuit against the Commissioner of Social Security, but that
attorney’s fees were unwarranted because the Commissioner had
pursued a substantially justified position.

For the reasons

that follow, we affirm.

I.
Upon suffering a spinal injury in 2004, Meyer applied for
Social

Security

disability

benefits.

An

administrative

law

judge (“ALJ”) denied the claim, reasoning that although Meyer
suffered from a degenerative back condition, he retained the
capacity to work.
In support of his conclusion, the ALJ noted that between
August 2005 and June 2006, Meyer reported improvements in his
overall

condition,

including

reliance on pain medication.

greater

mobility

and

reduced

In addition, numerous physicians
2

Appeal: 13-1700

who

Doc: 39

treated

Filed: 06/10/2014

Meyer

Pg: 3 of 14

indicated

that

he

was

in

“no

apparent

distress,” that he appeared to be “generally healthy,” and that
he could “ambulate independently.”
report

by

request,

Dr.

Barry

performed

Weissglass,
an

To be sure, Meyer offered a
a

physician

“independent

who,

occupational

at

Meyer’s

evaluation”

concluding that Meyer was unable to work outside the home.

The

ALJ did not find the report persuasive, however, noting that Dr.
Weissglass

was

not

Meyer’s

treating

physician

and

that

his

findings conflicted with the weight of the evidence. 1
Meyer
Council.

sought

review

from

the

Social

Security

Appeals

Along with his request for review, Meyer submitted

additional evidence, including a letter from Dr. Byron Bailey,
the

physician

who

performed

Meyer’s

surgery.

Although

Dr.

Bailey had not treated Meyer in the last two years, the doctor
claimed that Meyer suffered from “chronic, debilitating . . .
pain[,]

which

injury.”

was

anticipated

due

to

the

magnitude

of

his

Dr. Bailey further opined that Meyer would “continue

to require frequent follow-up and medical management” and would
likely

require

additional

surgeries.

At

the

close

of

his

letter, Dr. Bailey noted his agreement “with the majority of
[Dr. Weissglass’s] findings.”

1

For a more complete recitation of the facts, see Meyer v.
Astrue, 662 F.3d 700 (4th Cir. 2011).
3

Appeal: 13-1700

Doc: 39

Filed: 06/10/2014

Pg: 4 of 14

The Appeals Council denied Meyer’s request for review.
evaluating

the

claim,

the

Council

stated

that

it

found

In
Dr.

Bailey’s letter to present “new and material” evidence, and so
incorporated

the

§ 404.970(b).

letter

into

the

record.

See

20

C.F.R.

Nevertheless, after considering all the evidence

-- including the letter -- the Council declined to review the
ALJ’s decision.

In light of the Council’s pronouncement, the

ALJ’s decision became the “final decision” of the Commissioner
of Social Security.
Meyer
complaint,

then

sought

review

Meyer

asserted

federal

court.

In

the

that

in

his

Appeals

Council

erred

by

failing to make “specific findings of fact” explaining why Dr.
Bailey’s letter did not merit considerable weight and attention.
Meyer also argued that “substantial evidence” failed to support
the Commissioner’s decision.

Specifically, he contended that

the ALJ’s rejection of Dr. Weissglass’s findings could not stand
in

light

claimed

of

Dr.

Bailey’s

that

the

ALJ

conclusions.

ignored

the

fact

Additionally,
that

his

Meyer

treatment

schedule would require him to miss so much work that he was
effectively unemployable. 2

2

Meyer conceded at oral argument that he failed to raise
this argument with specificity before the ALJ.
He nonetheless
claims that the ALJ erred by failing to address the argument sua
sponte.
4

Appeal: 13-1700

Doc: 39

Filed: 06/10/2014

Pg: 5 of 14

In response, with respect to the failure of the Appeals
Council to address Dr. Bailey’s letter, the Commissioner argued
that federal regulations did not require the Council to explain
its evaluation of Meyer’s application in detail.
§ 404.970(b).

See 20 C.F.R.

Accordingly, the Commissioner maintained that the

Council’s summary affirmance of the ALJ did not violate the law.
As to the merits of Meyer’s application, the Commissioner
argued

that

“substantial

Commissioner’s
copious

decision.

medical

evidence”

The

evidence

did

Commissioner

indicated

pointed

that

significant improvements since his surgery.

support
out

Meyer

had

the
that
made

Dr. Bailey’s letter

did not alter this analysis because the letter was not “new and
material” evidence subject to administrative review:

Dr. Bailey

had ended his relationship with Meyer nearly two years before he
authored the letter, and his findings simply echoed those of Dr.
Weissglass.
Servs.,

953

See
F.2d

Wilkins
93,

v.

95-96

Sec’y,
(4th

Dep’t

Cir.

of

1991)

Health

&

(explaining

Human
that

evidence is “new” if it is not duplicative, and “material” if
there is a reasonable probability that the evidence would change
the outcome).

The Commissioner further argued that the failure

to address Meyer’s treatment schedule did not constitute error
because

Meyer

appointments

failed

would

to

present

prevent

him

alternative work schedule.
5

evidence

from

that

maintaining

his

doctor’s

a

flexible,

Appeal: 13-1700

Doc: 39

Filed: 06/10/2014

Pg: 6 of 14

The district court agreed with the Commissioner.
v.

Astrue,

No.

3:08-cv-3828-JFA-JRM,

Mar. 25, 2010) (unpublished).
their

earlier

arguments,

2010

WL

See Meyer

1257626

(D.S.C.

On appeal, the parties reiterated

with

one

important

exception.

The

Commissioner no longer justified the Commissioner’s decision on
the ground that Dr. Bailey’s letter was not new or material.
Instead, the Commissioner now conceded that the letter was new
and

material

evidence,

but

argued

that

it

was

not important

enough to undermine the Commissioner’s decision.

As before, the

Commissioner

treated

noted

that

Dr.

Bailey

had

not

Meyer

recently and that his findings were duplicative of those of Dr.
Weissglass.
In a published opinion, we affirmed in part and reversed in
part.

Meyer, 662 F.3d at 702.

We agreed with the district

court and the Commissioner that the Appeals Council was under no
obligation
request

to

for

articulate

review.

Id.

its
at

rationale
704–06.

for
We

denying

noted

that

Meyer’s
agency

regulations require the Council to explain its analysis only if
it

“grant[s]

Meyer’s

case,

[an
the

applicant’s]
Council

request

denied

the

[for

review],”

request.

Id.

and
at

in
705

(quoting 20 C.F.R. § 404.967).
With respect to the merits, however, we held that, based on
the record before us, we could not determine whether substantial
evidence supported the Commissioner’s decision.
6

Id. at 707.

Appeal: 13-1700

Doc: 39

Filed: 06/10/2014

Pg: 7 of 14

Accordingly, we remanded the case to the district court with
instructions to remand to the ALJ so that he could consider and
determine the import of Dr. Bailey’s letter.

Id.

We indicated

that, while doing so, the ALJ should also consider evidence of
Meyer’s absenteeism.

Id. at 707 n.3 (citing Newton v. Apfel,

209 F.3d 448, 459 (5th Cir. 2000)).
After the case was remanded, Meyer moved for attorney’s
fees

under

remand

to

the
the

Act.
ALJ

The

meant

district
that

against the Commissioner.
292, 300-02 (1993).
unwarranted
decisions

because
about

disagree.”

As

Commissioner

had

Meyer

concluded

prevailed

in

that

his

our

action

See Shalala v. Schaefer, 509 U.S.

The court held, however, that fees were
Meyer’s

which
a

court

case

reasonable

result,

pursued

a

it

was

“one

persons

could

not

“substantially

of

those

could,
be

said

close

and
that

did,
the

[un]justif[iable]”

position.
Meyer noted a timely appeal. 3

II.
The Equal Access to Justice Act provides that:

3

After Meyer filed his motion for attorney’s fees, Carolyn
Colvin replaced Michael Astrue as acting Commissioner of Social
Security.
For clarity, we continue to use masculine pronouns,
as it is the litigation position of Commissioner Astrue, not
acting Commissioner Colvin, that is at issue in this case.
7

Appeal: 13-1700

Doc: 39

Filed: 06/10/2014

Pg: 8 of 14

[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 . . .
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.
28 U.S.C. § 2412(d)(1)(A) (emphasis added).
The Act does not define the term “substantially justified.”
The Supreme Court has recognized, however, that the substantialjustification test is one of “reasonableness in law and fact.”
Pierce v. Underwood, 487 U.S. 552, 564-65 (1988).

That is,

“[t]he Government’s position is substantially justified if it is
. . . ‘justified to a degree that could satisfy a reasonable
person.’”

Cody v. Caterisano, 631 F.3d 136, 141 (4th Cir. 2011)

(quoting Pierce, 487 U.S. at 565).

Of course, the Government

need not prevail in an action for its position to have been
substantially
paying

fees

justified.
as

long

as

Rather,
“a

the

Government

reasonable

person

will

avoid

could

[have

thought]” that its litigation position was “correct.”

Pierce,

487 U.S. at 566 n.2.
“[In] determining whether the [G]overnment’s position in a
case is substantially justified, we look beyond the issue on
which the petitioner prevailed to determine, from the totality
of the circumstances, whether the [G]overnment acted reasonably
in causing the litigation or in taking a [particular] stance

8

Appeal: 13-1700

Doc: 39

Filed: 06/10/2014

during the litigation.”

Pg: 9 of 14

Roanoke River Basin Ass’n v. Hudson,

991 F.2d 132, 139 (4th Cir. 1993).
In doing so, it is appropriate to consider the
reasonable overall objectives of the [G]overnment and
the
extent
to
which
the
alleged
governmental
misconduct departed from them. . . .
Although an
unreasonable stance taken on a single issue may . . .
undermine
the
substantial
justification
of
the
[G]overnment’s position, that question can be answered
only by looking to the stance’s effect on the entire
civil action.
[Thus,] while a party may become a
“prevailing party” on a single substantive issue
. . . , it does not automatically follow that the
[G]overnment’s position in the case as a whole is not
substantially justified.
Id.
The

Government

bears

the

burden

justification in the first instance.
F.2d 655, 658 (4th Cir. 1991).

of

proving

substantial

Crawford v. Sullivan, 935

Once the district court has

determined the propriety of a fee, we review its decision for an
abuse of discretion.

Hyatt v. Barnhart, 315 F.3d 239, 245 (4th

Cir. 2002).

III.
A.
Meyer

does

Commissioner’s
See

not

contend

positions

Appellant’s

Br.

concedes

that

the

Security

regulations

13;

that

lacked
Reply

not

a
Br.

Commissioner
do

each

every

substantial
1.

On

reasonably

require
9

and

the

one

of

the

justification.

the

argued
Appeals

contrary,
that

he

Social

Council

to

Appeal: 13-1700

Doc: 39

Filed: 06/10/2014

Pg: 10 of 14

articulate its rationale for denying an applicant’s request for
review.

See Appellant’s Br. 13; Reply Br. 1.

This concession

seems inevitable since the Commissioner prevailed on this issue.
See Meyer, 662 F.3d at 706. 4
What Meyer contends is that the Commissioner unreasonably
maintained

that

Commissioner’s

“substantial

decision.

particular,

Meyer

unreasonably

in

See

argues

asserting

evidence”
Appellant’s

that
that

Dr.

the

supported
Br.

require reversal or remand to the ALJ.

13–16.

Commissioner

Bailey’s

the

letter

In
acted

did

Id. at 13–15.

not

Meyer

contends that, because Dr. Bailey was his treating physician,
the doctor’s recommendation should have received significant, if
not controlling, weight.

See 20 C.F.R. § 404.1527(c)(2).

In

addition, Meyer argues that the Commissioner erred in defending
the

ALJ’s

failure

Appellant’s Br. 16.

to

address

his

treatment

schedule.

See

According to Meyer, the fact that he would

miss so much work to attend his various appointments tended to
show that he was unfit for full-time employment.

To comply with

the substantial-evidence standard, Meyer asserts, the ALJ should
have considered this issue.

See Universal Camera Corp. v. Nat’l

4

Meyer has also conceded that the Commissioner’s position
throughout the administrative proceedings was reasonable.
See
United States v. 515 Granby, LLC, 736 F.3d 309, 315 (4th Cir.
2013) (holding that the Government’s pre-litigation position is
relevant to the attorney’s fees analysis).
10

Appeal: 13-1700

Labor

Doc: 39

Filed: 06/10/2014

Relations

Bd.,

340

Pg: 11 of 14

U.S.

474,

488

(1951)

(“The

substantiality of evidence must take into account whatever in
the record fairly detracts from its weight.”).
We disagree.
Commissioner’s

First, it is difficult to conclude that the

litigation

position

was

not

substantially

justified when Meyer himself concedes that the Commissioner was
correct with respect to one of the case’s two issues.

The

Appeals Council’s obligation to explain its rationale was an
important issue that had divided lower courts before we resolved
the matter in Meyer’s appeal.

Compare Jackson v. Barnhart, 368

F. Supp. 2d 504, 508 n.2 (D.S.C. 2005) with Harmon v. Apfel, 103
F. Supp. 2d 869, 873 (D.S.C. 2000).

In determining whether the

Commissioner advanced a reasonable litigation position, we must
consider the case as a whole, see Roanoke River Basin, 991 F.2d
at 139, and here, the Commissioner was right on one of two
important issues.
Even

as

to

the

substantial-evidence

before us was hardly clear-cut.

issue,

the

matter

The Commissioner argued that

Dr. Bailey’s letter was of limited utility because Dr. Bailey
had

not

treated

Meyer

information

he

provided

findings.

We

believe

recently,
was
that

and

duplicative
a

and

our

case

law
11

any

of

Dr.

reasonable

thought that this argument would prevail.
regulations

in

person

event,

the

Weissglass’s
could

have

Both Social Security

establish

that

a

treating

Appeal: 13-1700

Doc: 39

Filed: 06/10/2014

Pg: 12 of 14

physician’s opinion is to be accorded comparatively less weight
if

it

is

based

applicant’s

on

the

condition

evidence.

physician’s

or

limited

conflicts

with

knowledge

the

weight

of

the

of

the

Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996); 20

C.F.R. § 404.1527(c).

Dr. Bailey’s letter falls into both of

these categories.
Finally,
treatment

with

schedule,

respect
we

Commissioner’s

he

find

position.

argument

that

before the ALJ.

to

the

nothing

Meyer

failed

to

argument

unreasonable

himself

raise

about

the

about

acknowledged

issue

with

Meyer’s

at

the
oral

specificity

As the Eighth Circuit has noted, an ALJ “is not

obliged to investigate a claim not presented at the time of the
[benefits] application . . . and not offered at the hearing as a
basis for disability.”
(8th

Cir.

2010).

Halverson v. Astrue, 600 F.3d 922, 934

Accordingly,

the

Commissioner

did

not

act

unreasonably in defending the ALJ’s decision.
B.
Urging a contrary result, Meyer finds it significant that
the Commissioner changed his position regarding the import of
Dr.

Bailey’s

letter.

Before

the

district

court,

the

Commissioner argued that the letter was not “new and material”
evidence entitled to consideration by the Appeals Council; but
on

appeal,

he

conceded

considered the evidence.

that

the

Appeals

Council

properly

Given this change of position, Meyer
12

Appeal: 13-1700

Doc: 39

Filed: 06/10/2014

Pg: 13 of 14

argues that the Commissioner’s original defense cannot meet the
substantial-justification standard.
We are unpersuaded.

To be sure, the Commissioner initially

staked out a curious position.
letter

did

not

qualify

as

In asserting that Dr. Bailey’s

“new

and

material”

evidence,

the

Commissioner implicitly argued that the Appeals Council erred in
considering the letter.

See 20 C.F.R. § 404.970(b) (permitting

the

consider

Appeals

Council

to

“new

and

submitted for the first time on appeal).

material”

evidence

But to show that

substantial evidence supported the Commissioner’s decision, it
sufficed for the Commissioner simply to show that the letter,
though

material

to

Meyer’s

application,

did

integrity of the Commissioner’s decision.
340

U.S.

at

477

(defining

not

impugn

the

See Universal Camera,

“substantial

evidence”

as

“such

relevant evidence as a reasonable mind might accept as adequate
to support a conclusion”).

In other words, it would have been

easier for the Commissioner to concede that the letter contained
“new

and

material”

information,

but

to

argue

that

this

new

information was not significant enough to require reversal of
the Commissioner’s decision.

We note that this was precisely

the argument the Commissioner made before us on appeal.
Despite the oddity of the Commissioner’s original position,
his misstep does not merit a fee award.

For the Commissioner’s

change of position did not alter the core of his argument.
13

At

Appeal: 13-1700

Doc: 39

Filed: 06/10/2014

Pg: 14 of 14

every stage, in every brief, the Commissioner argued that Dr.
Bailey’s letter was of limited utility given that the doctor
last examined Meyer years before his letter and his findings
were duplicative of those of Dr. Weissglass.
a

reasonable

one,

and

any

errors

the

This position was

Commissioner

made

in

articulating it are not significant for purposes of a fee award
under

the

Act.

See

Roanoke

River

Basin,

991

F.2d

at

139

(holding that in determining whether the Government’s position
was substantially justified “it is appropriate to consider the
reasonable overall objectives of the [G]overnment and the extent
to

which

the

alleged

governmental

misconduct

departed

from

them”).

IV.
For

all

of

these

reasons,

the

judgment

of

the

district

court is
AFFIRMED.

14