07-4009-cv
Ericksson v. Commissioner of Social Security



                                    UNITED STATES COURT OF APPEALS
                                          F OR THE S ECOND C IRCUIT


                                                August Term, 2008

(Argued: December 8, 2008                                               Decided: February 19, 2009)

                                               Docket No. 07-4009-cv




                                               S ANDRA L. E RICKSSON,

                                                                         Plaintiff-Appellant,

                                                      — v.—

                                        C OMMISSIONER OF S OCIAL S ECURITY,

                                                                         Defendant-Appellee.


B e f o r e:

                               K EARSE, R AGGI, and L IVINGSTON, Circuit Judges.




          Appeal from a district court judgment denying plaintiff attorney’s fees pursuant to the

Equal Access to Justice Act, 28 U.S.C. § 2412(d), following agency award of disability

benefits on remand from the district court.

          R EVERSED AND R EMANDED.
              C HARLES A. P IRRO, III, South Norwalk, Connecticut, for Plaintiff-Appellant.

              A NN M. N EVINS, Assistant United States Attorney (Karen L. Peck, Assistant
              United States Attorney, on the brief), for Nora R. Dannehy, United States
              Attorney for the District of Connecticut, Bridgeport, Connecticut, for
              Defendant-Appellee.




R EENA R AGGI, Circuit Judge:

       Plaintiff Sandra Ericksson was awarded Social Security disability benefits in 2005

after the United States District Court for the District of Connecticut (Alan H. Nevas, Judge)

adopted the recommendation of the Magistrate Judge to remand defendant Commissioner of

Social Security’s (“Commissioner”) earlier denial of benefits for further proceedings.

Ericksson v. Barnhart, No. 00-cv-2221 (D. Conn. Sept. 17, 2003) (district judge’s order

adopting magistrate judge’s report), slip op. at 27 (D. Conn. Aug. 27, 2003) (magistrate

judge’s report). Ericksson now appeals the judgment of the same district court, entered on

July 19, 2007, denying her motion for attorney’s fees pursuant to the Equal Access to Justice

Act (“EAJA”), 28 U.S.C. § 2412(d). Because the Commissioner failed to demonstrate that

his position opposing benefits was “substantially justified,” id. § 2412(d)(1)(A), we reverse

the challenged judgment and remand for further proceedings.

I.     Background

       From May 1994 until January 1998, Ericksson received Social Security disability


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benefits based on limitations attributable to her non-Hodgkin’s lymphoma.            When

chemotherapy sent Ericksson’s lymphoma into full remission, the Commissioner terminated

benefits, finding that Ericksson was capable of performing light work. Proceeding pro se,

Ericksson appealed the Commissioner’s termination decision on the ground that, even though

her lymphoma was in complete remission, she had severe back pain that rendered her eligible

for continued disability payments. A Disability Hearing Officer determined that Ericksson

was capable of returning to work in spite of her back pain and upheld the Commissioner’s

decision, as did an Administrative Law Judge (“ALJ”).

       Ericksson challenged the agency’s decision in the district court, which appointed

counsel to represent her – the same counsel on whose behalf Ericksson now seeks attorney’s

fees. After reviewing the parties’ submissions, Magistrate Judge Holly B. Fitzsimmons, to

whom the matter had been referred, recommended remanding the Commissioner’s decision

to the agency for further consideration. The District Judge adopted the recommendation on

September 17, 2003 and entered judgment on November 10, 2003.

       On remand, a different ALJ (“the second ALJ”) determined that Ericksson remained

disabled under the Social Security Act as a result of “chronic back pain syndrome secondary

to advanced degenerative disc disease at L3-4 and L4-5 with facet sclerosis and narrowing,

osteopenia and severe scoliosis of the lumbar spine.” September 12, 2005 ALJ Decision

Awarding Benefits (“Second ALJ Op.”) at 3. As a “prevailing party” under the EAJA, see



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28 U.S.C. § 2412(d)(1)(A); Ma v. Chertoff, 547 F.3d 342, 343-44 (2d Cir. 2008), Ericksson

then applied to the district court for attorney’s fees. The Commissioner did not dispute

Ericksson’s status as a prevailing party. Nevertheless, he opposed any fee award on the

ground that the government’s previous position was substantially justified under 28 U.S.C.

§ 2412(d)(1)(A). The district court agreed and denied Ericksson’s EAJA fee request. This

appeal followed.

II.    Discussion

       Under the EAJA, “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 . . . brought by

or 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); see Healey v. Leavitt, 485 F.3d 63, 67 (2d Cir. 2007). The Commissioner

bears the burden of showing that his position was “substantially justified,” which the

Supreme Court has construed to mean “justified to a degree that could satisfy a reasonable

person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988).1 To make this showing, the



       1
         To the extent our recent decision in Healey v. Leavitt indicates that the government
must make a “strong showing” to satisfy its burden under § 2412(d)(1)(A), see 485 F.3d at
67, we do not understand that case to impose a standard higher than that set forth in Pierce
v. Underwood, 487 U.S. at 565 (holding that the understanding of “substantially justified”
“most naturally conveyed by the phrase . . . is not ‘justified to a high degree,’ but rather
‘justified in substance or in the main’ – that is, justified to a degree that could satisfy a
reasonable person”).

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Commissioner must demonstrate that his position had a “reasonable basis both in law and

fact.” Id. (internal quotation marks omitted); see Vacchio v. Ashcroft, 404 F.3d 663, 674 (2d

Cir. 2005). When assessing the “position of the United States,” we review both “the position

taken by the United States in the civil action, [and] the action or failure to act by the agency

upon which the civil action is based.” 28 U.S.C. § 2412(d)(2)(D); see Comm’r, INS v. Jean,

496 U.S. 154, 159 (1990); Healey v. Leavitt, 485 F.3d at 67; see also Smith v. Bowen, 867

F.2d 731, 734 (2d Cir. 1989) (“In adding this definition, Congress made clear that for EAJA

purposes, a court should inquire into both the underlying agency determination affecting the

party, as well as the Government’s litigation strategy in defense of that determination.”).

       We review a district court’s determination that the government satisfied its burden

under § 2412(d)(1)(A) only for abuse of discretion. See Pierce v. Underwood, 487 U.S. at

563. A district court acts within its discretion unless “(1) its decision rests on an error of law

(such as application of the wrong legal principle) or a clearly erroneous factual finding, or

(2) its decision – though not necessarily the product of a legal error or a clearly erroneous

factual finding – cannot be located within the range of permissible decisions.” Zervos v.

Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir. 2001) (footnotes omitted). In this case, we

conclude that the denial of fees was not within the range of permissible decisions available

to the district court because the government’s opposition to an award of benefits did not have

a reasonable basis in fact.



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       Specifically, the record demonstrates that the first ALJ improperly disregarded or

mischaracterized evidence of Ericksson’s continuing disability, and that the second ALJ

awarded Ericksson benefits based, in substantial part, on a proper assessment of this very

evidence. Ericksson submitted to the first ALJ a November 1997 medical report from Dr.

Henry A. Backe. The report explains that Ericksson had “undergone x-rays of the lumbar

spine in 1994 and 1995 which showed degenerative disc disease [at] the L3-L4 level.” Based

on a 1997 x-ray, Dr. Backe’s report also notes that “[t]he lumb[r]osacral spine, including

oblique views, shows advanced degenerative disc disease at L3-L4 and L4-L5. There is

associated facet sclerosis and narrowing.” The report concludes that Ericksson “has obvious

signs and symptoms as well as x-ray findings and bone scan findings of degenerative disc

disease.” The second ALJ relied on Dr. Backe’s November 1997 report and the x-rays and

bone scan referred to therein in awarding Ericksson benefits on remand. The second ALJ

explained that “the record indicates that [Ericksson] was . . . suffering from chronic back

pain . . . and continues to complain of intractable back pain . . . . As early as June 1993 x-rays

revealed degenerative changes and scoliosis of the lumbar spine.” Second ALJ Op. at 2.

       By contrast, the first ALJ mischaracterized Dr. Backe’s report, summarizing it simply

as: “claimant’s complaints of back pain were noted,” when the doctor in fact made an

independent diagnosis. April 14, 1999 ALJ Decision Denying Benefits (“First ALJ Op.”)

at 2. The first ALJ unreasonably minimized Dr. Backe’s diagnosis, observing that the doctor



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had found “a degree of degenerative disc disease,” id., when Dr. Backe had clearly diagnosed

Ericksson with “advanced degenerative disc disease.” Finally, at Ericksson’s hearing, the

first ALJ assured Ericksson that he would contact Dr. Backe “for records and anything he

wants to tell me about your functional capability.” Oct. 28, 1998 Hearing Tr. (“Tr.”) at 29.

The Commissioner does not dispute that, in fact, the ALJ made no such inquiry despite his

statutory and regulatory duty to do so. See 42 U.S.C. § 423(d)(5)(B) (“In making any

determination the Commissioner of Social Security shall make every reasonable effort to

obtain from the individual’s treating physician (or other treating health care provider) all

medical evidence, including diagnostic tests, necessary in order to properly make such

determination.”); 20 C.F.R. § 404.1512(d) (“Before we make a determination that you are

not disabled, we will develop your complete medical history for at least the 12 months

preceding the month in which you file your application unless there is a reason to believe that

development of an earlier period is necessary.”); id. § 416.912(d) (same); DeChirico v.

Callahan, 134 F.3d 1177, 1184 (2d Cir. 1998) (noting that, pursuant to 42 U.S.C.

§ 423(d)(5)(B), ALJ was required “not only to develop [petitioner]’s complete medical

history for at least the twelve-month period prior to the filing of his application, but also to

gather such information for a longer period if there was reason to believe that the information

was necessary to reach a decision”); Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (“Because

a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an



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affirmative obligation to develop the administrative record.”). Indeed, the first ALJ was

under a heightened duty to develop the record in order to ensure a fair hearing because

Ericksson was appearing pro se. See, e.g., Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)

(“[W]hen the claimant is unrepresented, the ALJ is under a heightened duty ‘to scrupulously

and conscientiously probe into, inquire of, and explore for all the relevant facts.’” (quoting

Echevarria v. Sec’y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982) (internal

quotation marks omitted))); Lopez v. Sec’y of Dep’t of Health & Human Servs., 728 F.2d

148, 149-50 (2d Cir. 1984) (same). The first ALJ’s failure to contact Dr. Backe and his

unreasonable interpretation of the doctor’s report is further significant because the ALJ

repeatedly admonished Ericksson for failing to submit “a medical report or a medical

diagnosis or test results” in support of her claim when she had, in fact, done just that. Tr. at

14; see also id. at 16, 21, 23.

        These circumstances distinguish Ericksson’s EAJA claim from that presented in

Rosado v. Bowen, 823 F.2d 40 (2d Cir. 1987). In Rosado, we affirmed the district court’s

denial of EAJA fees because the plaintiff had failed to satisfy the requirement that she submit

either “‘x-ray evidence of arthritis in a weight bearing joint or spine’” or adequate evidence

of “‘[c]hronic venous insufficiency . . . and persistent edema.’” Id. at 43 (quoting 20 C.F.R.

§§ 404.1501 et seq., app. § 10.10(A), (D) (1986) (emphasis removed)). On remand, the

plaintiff complied with the regulations and was awarded benefits. See id. at 41. By contrast,



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Ericksson’s claim was supported from the start by probative medical evidence that was

unreasonably ignored or mischaracterized by the first ALJ.

       The first ALJ also mischaracterized Ericksson’s hearing testimony when he observed

that Ericksson “cooks, shops, does household chores, but stated she has to use a stool when

washing dishes.” First ALJ Op. at 3. In fact, Ericksson testified that she does not cook

because she cannot stand, see Tr. at 30, that she is unable to stand long enough to floss and

brush her teeth or to get dressed, see id. at 26, that she cannot stand for more than 10 or 15

minutes, see id. at 3, and that there are days when she is unable to leave her residence

because she “can’t do the stairs” to her third-floor apartment, id. at 33. There is no testimony

in the record regarding shopping, household chores, or washing dishes. The first ALJ also

stated that Ericksson testified that “she has adjusted to her discomfort.” First ALJ Op. at 3.

To the contrary, Ericksson referred to “all these adaptations I’ve made to basically not having

a life” as a result of her pain. Tr. at 26 (emphasis added). Ericksson further explained that,

because of her back pain, she spent her “time on, on basically a chaise lounge and I read.”

Id. Given this record, the government understandably conceded at oral argument that the first

ALJ mischaracterized Ericksson’s testimony. Moreover, the government has not attempted

to harmonize the first ALJ’s treatment of Ericksson’s testimony with its argument that its

initial position was substantially justified.

       Our conclusion that the ALJ’s treatment of Ericksson’s claim was not substantially



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justified by the record on the initial administrative appeal is not altered by the fact that

Ericksson, through appointed counsel, submitted additional evidence to the second ALJ. The

record supporting her disability claim indicates that the second ALJ awarded benefits based

in large part on the same evidence that the first ALJ mischaracterized as non-probative or

dismissed as insufficient. See Second ALJ Op. at 2. The fact that Ericksson’s already strong

claim was reinforced by additional evidence on remand does not render the government’s

original dismissive treatment of her claim “substantially justified.”               28 U.S.C.

§ 2412(d)(1)(A).

       III.   Conclusion

       In light of the first ALJ’s burden to develop fully the record and the government’s

subsequent burden to demonstrate that its position in denying her benefits was substantially

justified, we conclude that the district court acted outside its discretion in denying EAJA fees

to Ericksson’s appointed counsel. Accordingly, the challenged judgment is REVERSED and

the case REMANDED with instructions to award EAJA fees because the government’s

position was not substantially justified. We take no position on whether the amount of

Ericksson’s fee request is reasonable, leaving that determination to the district court to make

in the first instance. See 28 U.S.C. § 2412(d)(2)(A) (defining reasonable “fees and other

expenses” under the EAJA).




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