Filed: May 05, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1116 THOMAS MORTENSEN, Plaintiff - Appellant, v. MICHAEL J. ASTRUE, Commissioner of Social Security, substituted for JoAnne Barnhart, 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
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1116 THOMAS MORTENSEN, Plaintiff - Appellant, v. MICHAEL J. ASTRUE, Commissioner of Social Security, substituted for JoAnne Barnhart, 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 a..
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UNPUBLISHED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 of Social Security,
substituted for JoAnne Barnhart,
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Affirmed by unpublished opinion.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
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Unpublished opinions are not binding precedent in this circuit.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 ruling was not supported by substantial
evidence. 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 substantially justified and accordingly denied
Mortensen’s motion for attorneys fees. From that order,
Mortensen now appeals. We affirm.
I
Beginning in 2004, Mortensen began to experience acute pain
in his lower back and left leg. Dr. Darrell Cunningham,
Mortensen’s treating physician, was initially skeptical of
Mortensen’s complaints. But following an inspection of an MRI,
Dr. Cunningham found that Mortensen suffered from a
“degenerative disc disease.” Dr. Cunningham 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.” The
4
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). In the
ALJ’s view, Dr. Cunningham’s conclusions were “not well
supported objectively” because Cunningham relied primarily on
Mortensen’s subjective complaints of pain. 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. For example, he told one doctor that
“nothing had relieved his pain,” while he stated at another
point that morphine injections and a 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 he suffered from the kind of pain that Mortensen had
complained of. Having already found Mortensen’s testimony
regarding his pain not credible, the ALJ 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 and recommendation which concluded that the ALJ’s
opinion about the weight of Dr. Cunningham’s diagnosis and
Mortensen’s credibility was not supported by 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 amount of weight Mortensen could lift.
Accordingly, the magistrate judge concluded that 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
6
pain where none truly existed. Indeed, the magistrate judge
noted that the ALJ had 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. The court
reversed the Social Security Administration’s 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. The Commissioner argued that while he did not
prevail on the merits, his position was nonetheless
“substantially justified,” so that a fee 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 reasonable for the Commissioner to 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 of [Mortensen’s] treating
physician.”
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This appeal followed.
II
Under the EAJA, prevailing parties are entitled to
attorneys fees “unless the [district] court finds that the
position of the United States was substantially justified.” 28
U.S.C. § 2412(d)(1)(A). To take advantage of the exception, the
government must show that its position was justified “as an
inclusive whole.” INS v. Jean, 496 U.S. 154, 159, 161-62
(1990). In other words, the substantial justification analysis
encompasses not only the government’s litigating positions, but
also its positions in administrative hearings as well. See
Crawford v. Sullivan,
935 F.2d 655, 656-57 (4th Cir. 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)). Rather, the government’s position is substantially
justified so 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 action found to be . . . unsupported by
substantial evidence is virtually certain not to have been
substantially justified.” H.R. Rep. No. 99-120, pt. 1, at 9-10
(1985), reprinted in 1985 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
1987) (“The substantial-evidence 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 the ALJ’s decision was “substantially
justified.” While Mortensen acknowledges that the
Commissioner’s litigating position in the district court may
have been reasonable, he maintains that the 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 Record 6-9; J.A. 49-54. In addition, the
Commissioner specifically defended the reasonableness 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
10
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 basis for the ALJ to discredit [Mortensen’s]
subjective complaints” of pain. 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, this case presents a mixed administrative
record. Dr. Kidwai and another specialist concluded that
Mortensen was capable of a slightly wider range of functional
capabilities than what Dr. Cunningham had found. These
differences of opinion were not merely academic, as Dr.
Cunningham’s diagnosis would have disqualified Mortensen from
performing “light work,” 20 C.F.R. § 404.1567(b), while the
other diagnoses might not have. 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
11
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
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