Metropolitan News-Enterprise


Tuesday, March 11, 2008


Page 1


Court Awards Plaintiff Fees for Agency’s Unjustified Appeal


By a MetNews Staff Writer


A district court abused its discretion by denying a plaintiff attorney fees under the Equal Access to Justice Act because the government’s defense of procedural errors in an administrative judge’s opinion on appeal was not substantially justified, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Reversing the decision of Presiding Magistrate Judge Mark E. Aspey of the United States District Court for the District of Arizona, the court held that the proper inquiry is not the merits of the government’s arguments in the underlying disability claim, but whether a reasonable basis existed in law and fact to support the administrative law judge’s explanation for his denial of social security benefits.

Patricia Shafer had sought review from an administrative law judge after the commissioner of the Social Security Administration denied her application for disability benefits, but the judge concluded that Shafer was not disabled within the meaning of the Social Security Act and the district court affirmed the decision.

On appeal, the Ninth Circuit ruled in an unpublished memorandum decision reversed the district court, ruling that it was “not possible to discern the bases for the [administrative law judge’s] conclusions,” because the decision was “infected” by the judge’s “failure to make findings and weigh evidence.”

Citing the administrative law judge’s adoption of a non-treating, non-examining medical expert’s opinion, even though the expert’s assessment was contradicted by the evidence in the record; the judge’s failure to develop evidence of a “medically determinable mental impairment” and evaluate every medical opinion received; and the judge’s failure to provide clear and convincing reasons for discrediting Shafer’s subjective complaints and rejecting the uncontroverted opinion of Shafer’s treating physician, the Ninth Circuit remanded the case for further proceedings without expressing an opinion on the underlying merits.

Shafer then filed a motion for attorney fees under the Equal Access to Justice Act, contending that the government had lacked substantial justification to defend the administrative law judge’s decision on appeal. The act provides that a prevailing party is entitled to recover fees and expenses incurred in any civil action against the United States, “unless the court finds that the position of the United States was substantially justified.”

Reasoning that the Ninth Circuit had neither concluded that Shafer was disabled, nor that the administrative law judge had erred in determining that she was not disabled, the district court held that the government was substantially justified in defending the appeal because the parties were engaged in a “‘genuine dispute’ regarding an issue about which ‘reasonable people’ could disagree.”

However, on Shafer’s second appeal, the Court of Appeals rejected this conclusion.

Writing for the court, Judge Carlos T. Bea said:

“Where, as here, the ALJ’s decision was reversed on the basis of procedural errors, the question is not whether the government’s position as to the merits of Shafer’s disability claim was substantially justified…. Rather, the relevant question is whether the government’s decision to defend on appeal the procedural errors committed by the ALJ was substantially justified.”

Pointing to its previous decision in Corbin v. Apfel, (9th Cir. 1998) 149 F.3d 1051—where the Ninth Circuit held that the government’s defense of “basic and fundamental errors” lacked substantial justification—Bea wrote that “the ALJ committed the same fundamental procedural errors as the ALJ in Corbin…[and] committed procedural errors that were absent in Corbin…. It follows a fortiori the government’s defense of the ALJ’s procedural errors was not substantially justified, and Shafer is entitled to attorneys’ fees under the EAJA.”

Counsel for Shafter could not be reached for comment.

Lowell Kepke, spokesperson for the San Francisco Regional Office of the Social Security Administration stated that the legal department was reviewing the opinion and would determine what the next action would be.

Bea was joined in his opinion by Judge Harry Pregerson and Judge Eugene E. Siler Jr. of the Sixth Circuit, sitting by designation.

The case is Shafer v. Astrue, 05-16507.


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