DIRVEN D. REEVES, PLAINTIFF-APPELLANT,
v.
OTIS R. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT-APPELLEE

11th Cir. | 1988-03-28
No. 87-7444
Before RONEY, Chief Judge, HATCHETT and ANDERSON, Circuit Judges.
841 F.2d 383 Court of Appeals for the Eleventh Circuit (1988) Positive Treatment
Cited by 6 cases

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Holding

The district court did not abuse its discretion in denying attorney's fees under the EAJA because the Government's position was substantially justified.


Facts & Procedural History

A Social Security claimant, initially denied benefits, was awarded them on remand after presenting new evidence of a subaverage IQ. He then sought att…

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Opinion of the Court
PER CURIAM:

PER CURIAM:

Social Security Claimant Dirven D. Reeves appeals the district court’s denial of his application for attorney’s fees under the Equal Access to Justice Act (EAJA). 28 U.S.C.A. § 2412. Because the district court did not abuse its discretion in concluding that the Government’s position was “substantially justified,” even though Reeves prevailed on an appeal to this Court and ultimately was awarded benefits by the agency, we affirm.

This case has an unusual history. Reeves initially filed for disability benefits claiming hip, leg and hearing problems as his disabling conditions. Denied benefits by the agency and the district court, Reeves appealed to this Court. As a result, the case was remanded to the Secretary to consider the need for an orthopedic evaluation and to consider claimant’s impairments in combination. Reeves v. Heckler, 734 F. 2d 519 (11th Cir.1984).

On remand, new evidence was presented by Reeves showing that he had a significantly subaverage I.Q. The Secretary held this mental deficiency established claimant’s presumptive disability and entitlement to benefits. See 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.05. The Administrative Law Judge (AU) did not consider the need for an orthopedic examination nor the effect of claimant’s impairments in combination, that being unnecessary due to the award of benefits on the ground of mental incapacity.

On Reeves’ application for attorney’s fees under the EAJA, the district court denied the petition on the ground that the Government’s position was substantially justified. 28 U.S.C.A. § 2412(d)(1)(A). That decision is reversible on this appeal only if the district court abused the discretion it has in such determinations. Strat- ton v. Bowen, 827 F. 2d 1447 (11th Cir.1987); White v. United States, 740 F. 2d 836 (11th Cir.1984).

The problem with this case is that no one knows whether the claimant could have prevailed if on remand an orthopedic examination had been made and claimant’s impairments had been considered in combination. Nor can one tell if the Government’s opposition to relief on that analysis would have been justified.

Contrary to the argument that the Secretary’s position was unreasonable because the AU failed initially to order a consultative orthopedic examination, this Court did not hold the failure to order such an examination was reversible error. We said:

While we do not base our decision on this issue, the AU failed to order a consultative examination by an orthopedist even though the SSA’s consulting doctor recommended such an evaluation. The regulations provide that the AU ipay order a consultative examination when warranted. 20 C.F.R. Sec. 404.1517 (1983). It is reversible error for an AU not to order a consultative examination when such an evaluation is necessary for him to make an informed decision. Ford v. Secretary of Health and Human Services, 659 F. 2d 66, 69 (5th Cir.1981) (Unit B). On remand the AU should consider the need for an orthopedic evaluation.

Reeves v. Heckler, 734 F. 2d at 522 n. 1. Thus, the Court expressed no opinion as to the necessity for an examination in this case but directed the AU to consider the need for an orthopedic evaluation. The new evidence on the mental disability cut short the need for that consideration.

Neither can it be said that the Secretary’s position was unjustified because the AU should have requested that Reeves take an I.Q. test. No reason for such testing was indicated in the initial proceeding. Claimant did not allege mental retardation as a basis for his disability. Neither claimant nor his paralegal representative requested an I.Q. test. In his attorney’s brief to the district court, claimant alleged serious psychological problems but characterized them as depression, anxiety and nervousness.

Although Dr. Stephen Branning, an internist, diagnosed subnormal intelligence in his report of March 14, 1980, he performed no testing to substantiate this, and did not repeat the diagnosis in February, 1981. Claimant had a tenth grade education and was described by Dr. Haney, a psychiatrist, as of average intelligence in January 1981. Claimant testified that he could read a newspaper, perform basic mathematical computations, and make change. Nothing in the record at the initial hearing warranted a finding that claimant’s I.Q. was so low that he met the listings or that further development was indicated. Based on the record in the initial hearing, the Government cannot be faulted for failing to foresee the transformation of the basis for the claim from physical to mental disability.

As to the combined effects of his impairments, although this Court remanded the case for further consideration, it was not an abuse of discretion for the district court to decide that the Secretary was substantially justified in arguing that a reasonable attempt was made by the AU to consider claimant’s impairments in combination. After describing each medical exhibit submitted to the record, the AU summarized all of claimant’s medically determinable impairments and the limitations he experienced from each. The AU partly credited claimant’s subjective complaints of pain, and reached a determination that the combination of his impairments limited him to a wide range of sedentary work activities. In his decision, the AU stated “[cjombined, the claimant’s impairments can be expected to limit him to at least a wide range of sedentary work activities.” This language has been held sufficient to meet the requirement of considering impairments in combination. Wheeler v. Heckler, 784 F. 2d 1073, 1076 (11th Cir.1986).

The district court, thus, did not abuse its discretion in concluding that the Government was justified in opposing the claim based on the evidence submitted in the initial agency determination. It seems ap parent that had the evidence of mental retardation been presented at that initial hearing, the Secretary would have awarded Social Security benefits and the litigation in the courts would have been unnecessary. The law is clear that claimant is not entitled to attorney’s fees for an administrative hearing with no court involvement. Taylor v. Heckler, 778 F. 2d 674, 676 (11th Cir.1985); White v. United States, 740 F. 2d 836, 840 (11th Cir.1984).

AFFIRMED.


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  • Myers v. Sullivan, 916 F.2d 659 (11th Cir. 1990)
    …67, quoting Pierce v. Underwood, 487 U.S. at 565, 108 S.Ct. at 2550—then, notwithstanding the fact, that the claimant ultimately prevailed in the litigation, the claimant is [*667] not entitled to receive attorney’s fees. See, e.g., Reeves v. Bowen, 841 F. 2d 383 (11th Cir.) (per curiam), order on reh’g, 860 F. 2d 1009 (11th Cir.1988); Jefferson v. Bowen, 837 F. 2d 461 (11th Cir.1988) (per curiam). IV. THE THIRTY-DAY DEADLINE FOR FILING AN EAJA FEE PETITION A. Pre-1985 Authority Prior to the 1985 reenactm…
  • Mobley v. Apfel, 104 F. Supp. 2d 1357 (M.D. Fla. 2000)
    …law and fact.” Id. at 1425 (citations and internal quotation marks omitted). Still, the mere fact the cause was remanded to the Commissioner does not automatically establish his position was not substantially justified. Reeves v. Bowen, 841 F.2d 383, 385 (11th Cir.1988) (per curiam). The Court concludes that the Commissioner has failed to prove his position was substantially justified. In considering residual functional capacity (RFC) the Court concluded, in part, the ALJ’s findings in conn…
  • Dirven D. Reeves v. Bowen, 860 F.2d 1009 (11th Cir. 1988)
    …(Opinion 841 F. 2d 383 (11th Cir.1988)) Before RONEY, Chief Judge, HATCHETT and ANDERSON, Circuit Judges. ORDER: On petition for rehearing, plaintiff Reeves argues that the disposition of this case, reported as Reeves v. Bowen, 841 F. 2d 383 (11th Cir.1988), is inconsi…
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