Bryan v. Astrue
Filing
41
MEMORANDUM AND ORDER denying 24 Motion for Attorney Fees Signed by Honorable A. Richard Caputo on 5/16/11 (jam, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
THOMAS L. BRYAN,
CIVIL ACTION NO. 3:07-CV-2121
Plaintiff,
(JUDGE CAPUTO)
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant.
MEMORANDUM
Presently before the Court is plaintiff Bryan’s (“Bryan”) motion for attorneys’ fees
(Doc. 24) pursuant to the Equal Access to Justice Act (“EAJA”). Defendant Astrue argues
that plaintiff is not entitled to attorneys’ fees because the government’s position was
“substantially justified.” Because the court agrees with defendant’s position, the motion for
attorneys’ fees will be denied.
BACKGROUND
Bryan applied for Social Security Disability Insurance (“SSDI”) benefits on October
2, 2004, alleging that he required disability benefits as of April 13, 2003. Bryan’s disability
claim was allegedly based on: heart by-pass surgery, stroke, glaucoma, arthritis of the
wrists, degenerative disc disease in his back, diabetes, high cholesterol, hypertension,
memory problems, and ‘ticking’ in the left ear. Bryan’s claim was denied and a hearing was
held before Administrative Law Judge Douglas A. Abruzzo on July 13, 2006 and continued
on January 18, 2007. On March 13, 2007, the ALJ denied Bryan’s claim on the ground that
only one of Bryan’s ailments – the degenerative disc disease – constituted a “severe
impairment,” and despite that impairment Bryan retained a “residual functional capacity” to
undertake certain types of work. Bryan sought review of this decision from the Appeals
Council of the Social Security Administration, which denied the request on September 17,
2007. On November 20, 2007, Bryan filed the instant suit, seeking review of the denial of
his application for benefits.
Magistrate Judge Mannion issued a Report and
Recommendation (“R&R”) on October 15, 2008, recommending denial of Bryan’s complaint.
This Court adopted the R&R by order on March 12, 2009. Bryan then filed an appeal with
the Third Circuit.
On appeal, the Third Circuit, while affirming the majority of the ALJ’s findings,
remanded for further consideration of the effect of Bryan’s back impairment on his residual
functional capacity. Bryan v. Comm’r of Soc. Sec., 383 Fed. Appx. 140 (3d Cir. 2010). The
Third Circuit held that the ALJ, in making his determination that Bryan’s degenerative disc
disease did not bar Bryan from engaging in past forms of employment, did not properly take
account of Bryan’s testimony regarding his daily activities. The Third Circuit also held that
the ALJ did not mention the medical evidence that directly contradicted the ALJ’s conclusion
that Bryan was no longer suffering from significant pain.
Following this ruling, on September 29, 2009, Mark S. Weaver, Esq., counsel for
Bryan, filed a Petition for Attorneys’ Fees under the EAJA. The petition claims that Mr.
Weaver and Sarah H. Bohr, Esq., are entitled to twenty-two thousand three-hundred and
sixty dollars and seventy-four cents ($22,360.74) in attorneys’ fees, as well as four-hundred
and sixty-six dollars and sixty-four cents ($466.64) in expenses and eight-hundred and fivedollars ($805.00) in filing fees. Commissioner Astrue then filed a brief opposing the motion
on the ground that the government’s position was “substantially justified,” or, in the
alternative, that plaintiff’s counsel’s stated fees were excessive and should be significantly
reduced.
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DISCUSSION
The motion for attorneys fees pursuant to the EAJA will be denied because the
position taken by the government was “substantially justified.”
“[T]he essential objective of the EAJA [is] to ensure that persons will not be deterred
from seeking review of, or defending against, unjustified governmental action because of
the expense involved in the vindication of their rights....” Clarke v. INS, 904 F.2d 172, 178
(3d Cir.1990) (internal quotation omitted). The EAJA thus provides, in pertinent part, 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 ... including proceedings for judicial review of
agency action, 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.
28 U.S.C. § 2412(d)(1)(A) (emphases added). The Supreme Court has held that, as used
in the EAJA, to be “substantially justified,” the government's position need not be “correct”,
or even “justified to a high degree.” Pierce v. Underwood, 487 U.S. 552, 565, 566 n. 2
(1988). Rather, the government must simply have a “reasonable basis in both law and fact”
or be “justified in substance or in the main-that is, justified to a degree that could satisfy a
reasonable person.” Id. (internal quotation marks omitted) Thus, “[a] court must not assume
that the government's position was not substantially justified simply because the
government lost on the merits.” Kiareldeen v. Ashcroft, 273 F.3d 542, 554 (3d Cir.2001).
“The EAJA is not a ‘loser pays' statute”; rather, courts should limit their inquiries to whether
the government's position was reasonable under the facts and the law.” Morgan v. Perry,
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142 F.3d 670, 685 (3d Cir. 1998).
To defeat a prevailing party's application for fees, the government must establish that
there is substantial justification for its position by demonstrating “(1) a reasonable basis in
truth for the facts alleged; (2) a reasonable basis in law for the theory it propounded; and
(3) a reasonable connection between the facts alleged and the legal theory advanced.”
Morgan, 142 F.3d at 684 (internal citation omitted).
The government's position consists of both its prelitigation agency position and its
litigation position. As other circuits have recognized, when determining whether the
government's position is substantially justified, “we must ... arrive at one conclusion that
simultaneously encompasses and accommodates the entire civil action.” Williams v. Astrue,
600 F.3d 299, 302 (3d Cir. 2009) (quoting Jackson v. Chater, 94 F.3d 274, 278 (7th
Cir.1996)).
In this case, the Third Circuit affirmed the R&R’s findings regarding Bryan’s cardiac
condition, diabetes, glaucoma, tinnitus in the left ear, wrist conditions, and emotional
problems. Bryan, 383 Fed. Appx. at 151. However, the court remanded on the issue of his
degenerative disc disease, essentially on the grounds that the ALJ did not properly take into
account Bryant’s testimony regarding how his back problems affect his daily activities.
Applying the three-part Morgan test for determining substantial justification, the Court finds
the government position substantially justified.
First, the government’s position had a reasonable basis in truth for the facts alleged.
The ALJ, in making his findings, reviewed all of the medical evidence, including medical
history, doctors’ reports, and plaintiff’s testimony. Both the Magistrate Judge and this Court
found that the Social Security Agency’s position was supported by “substantial evidence,”
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and upheld the ALJ’s ruling over plaintiff’s objections. Although the Third Circuit remanded
on the degenerative disc issue, that was only one out of seven of the ALJ’s conclusions
confirmed in the Magistrate Judge’s R & R.
The Court next turns to whether the government’s position had a reasonable basis
in law. The government’s position was that the ALJ, in choosing not to give significant
weight to the plaintiff’s subjective testimony when it was contradicted by the medical
evidence, had discretion to make its own evaluation as to plaintiff’s condition based on the
medical records. LaCorte v. Bowen, 678 F.Supp. 80, 83 (D.N.J. 1988). In LaCorte, a
District of New Jersey court held:
The ALJ must give serious consideration to the plaintiff's subjective complaints
of pain, even when those assertions are not fully confirmed by objective medical
evidence. Welch v. Heckler, 808 F.2d 264, 270 (3d Cir.1986). The ALJ, though,
is not obliged to accept without question the credibility of such subjective
evidence. Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979). The ALJ has
discretion “to evaluate the credibility of a claimant and to arrive at an independent
judgment in light of medical findings and other evidence regarding the true extent
of the pain alleged by the claimant.” Brown v. Schweiker, 562 F.Supp. 284, 287
(E.D.Pa.1983), quoting, Bolton v. Secretary of HHS, 504 F.Supp. 288
(E.D.N.Y.1980).
LaCorte v. Bowen, 678 F.Supp. 80, 83 (D.N.J. 1988). However, here, in reviewing the
ALJ’s findings, the Third Circuit, citing Burnett v. Comm’n of Soc. Sec. Admin., stated that
the ALJ, in making his residual functional capacity decision, was under an obligation to
evaluate all the evidence before him, including plaintiff’s testimony that contradicted the
ALJ’s findings. 220 F.3d 112, 121 (3d Cir. 2000). The Court finds that the government’s
legal position, while perhaps not completely correct, was reasonable. While the ALJ could
have more adequately addressed plaintiff’s testimony that contradicted his findings, the
government’s legal position as to the ALJ’s discretion was well-grounded in the case law.
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See LaCorte, supra.
Finally, the Court finds a reasonable connection between the facts alleged and the
legal theory relied on by the government. As mentioned above, the ruling of the ALJ was
affirmed by both the Magistrate Judge as well as this Court. Further, while the Third Circuit
did remand on the issue of plaintiff’s degenerative disc problem, that was only one out of
seven findings it reviewed. Although these facts are not dispositive to determining whether
the government’s position was “substantially justified,” they clearly support the overall
reasonableness of the government’s position. Although the ALJ should have directly
addressed Plaintiff’s testimony that contradicted the ALJ’s findings, if only to dismiss it,
neither his findings, nor the government’s legal support for these findings, was
unreasonable. While the government’s position with respect to how the degenerative disc
issue was treated by the ALJ might not have been totally correct, the Court does find a
reasonable connection between the truth of the facts it asserted and the law it relied on.
CONCLUSION
For the reasons stated above, plaintiff Bryan’s motion for attorneys’ fees (Doc. 24)
will be denied.
An appropriate order follows.
5/16/11
Date
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
THOMAS L. BRYAN,
CIVIL ACTION NO. 3:07-CV-2121
Plaintiff,
(JUDGE CAPUTO)
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant.
ORDER
NOW, this
16th
day of May, 2011, IT IS HEREBY ORDERED that plaintiff
Bryan’s motion for attorneys’ fees (Doc. 24) is DENIED.
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
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