                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-30-2008

Ruiz v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4186




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                                                            NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-4186


                                   ROBERTO RUIZ,
                                                      Appellant

                                            v.

                      COMMISSIONER OF SOCIAL SECURITY

                                      __________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                              (D.C. Civil No. 02-cv-03575)
                    District Judge: Honorable Dennis M. Cavanaugh
                                       __________

                      Submitted Under Third Circuit LAR 34.1(a)
                                on November 30, 2007

     Before: BARRY, FUENTES, Circuit Judges, and DIAMOND,* District Judge.

                                (Filed: January 30, 2008)




      *
        Honorable Paul S. Diamond, District Judge of the United States District Court for
the Eastern District of Pennsylvania, sitting by designation.

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                                       ___________

                               OPINION OF THE COURT
                                    ____________

DIAMOND, District Judge.

       Robert Ruiz, a successful claimant for Social Security disability benefits, appeals

from the District Court’s denial of his application for attorney’s fees. Because we

conclude the District Court did not abuse its discretion, we affirm.

I.     JURISDICTION

       We have jurisdiction pursuant to 28 U.S.C. § 1291.

II.    LEGAL STANDARD

       Ruiz seeks counsel fees under the Equal Access to Justice Act (“EAJA”). 28

U.S.C. § 2412(d)(1)(A). We have previously explained the “policy underlying the

EAJA”:

          Concerned that the Government, with its vast resources, could force
          citizens into acquiescing to adverse Government action, rather than
          vindicating their rights, simply by threatening them with costly
          litigation, Congress enacted the EAJA, waiving the United States’
          sovereign and general statutory immunity to fee awards and creating
          a limited exception to the ‘American Rule’ against awarding
          attorneys fees to prevailing parties.

Morgan v. Perry, 142 F.3d 670, 683 (3d Cir. 1998) (quoting Pierce v. Underwood, 487 U.S.

552, 575 (1988) (Brennan, J., concurring in part and concurring in the judgment)).

       The EAJA provides, in pertinent part, that a prevailing party in litigation against

the Government shall be awarded “fees and other expenses . . ., unless the court finds that


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the position of the United States was substantially justified.” 28 U.S.C. § 2412(d)(1)(A).

A position is “substantially justified” when it is “justified in substance or in the main -

that is, justified to a degree that could satisfy a reasonable person.” Pierce, 487 U.S. at

565. Thus, the Government’s position is substantially justified “if it has a reasonable

basis in both law and fact.” Morgan, 142 F.3d at 684 (quoting Hanover Potato Prods.,

Inc. v. Shalala, 989 F.3d 123, 128 (3d Cir. 1993)).

        To establish that her position was substantially justified, the Commissioner must

show:

           (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.

Id. (citing Hanover, 989 F.3d at 128). We have held that the Government’s litigation

position may be substantially justified even when it loses on the merits. See, e.g.,

Kiareldeen v. Ashcroft, 273 F.3d 542, 554 (3d Cir. 2001); Morgan, 142 F.3d at 685.

III.    BACKGROUND

        The procedural history of this matter has been complicated by counsel’s decision

to pursue two benefits applications, based on different disability allegations. The second

application was successful; the first was not. The fee petition before us relates

exclusively to counsel fees incurred in pursuing the first application.

        Ruiz correctly notes that in deciding his claim for counsel fees, the Court must

evaluate “not only the government’s litigation position but also the agency position that


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made the lawsuit necessary . . . .” (Appellant’s Br. at 12); 28 U.S.C. § 2412(d)(2)(D).

Accordingly, we will review in some detail the ALJ’s denial of the first application --

which became the SSA’s final decision after the Appeals Council affirmed it.

       A.       The First Benefits Application

       A resident of Jersey City, Ruiz first applied for benefits in 1999, claiming total

disability as of September 30, 1998. Ruiz had been employed in a factory (R. at 273), and

also “worked for years picking fruit and tomatoes on farms.” Id. at 20. Ruiz based his

first application on allegations of back and ankle pain, left-eye blindness, and a skin

disorder. In evaluating that application, the ALJ conducted a hearing and followed the

required five-step process. See 20 C.F.R. § 404.1520. The ALJ first determined that

Ruiz had not been employed since September 30, 1998. (R. at 18.) The ALJ described

Ruiz’s physical abilities:

             [Ruiz] engages in a variety of daily activities, which are not
             typically performed by a person who is too disabled to work. He
             reported that he cooks, cleans and takes out the garbage. He
             reported that he does not do household repairs because he is not
             required to do so and he does not garden because he has no garden,
             but he does take walks. He testified that he walks to the store to
             shop. He watches television up to eight hours per day, an activity
             that requires extensive visual acuity, visits relatives and attends
             church. He is also able to obtain money orders to pay his bills.


Id. at 21.




                                              -4-
       The ALJ also reviewed considerable medical evidence. Although Ruiz’s treating

physician, Dr. Purisima, stated in a letter that Ruiz was “totally and permanently

disabled,” the ALJ explained that he accorded that opinion “no significant weight”

because it was contradicted by the doctor’s “own objective findings.” Id. at 19; see also

Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988) (“medical judgment of a

treating physician can be rejected only on the basis of contradictory medical evidence”);

20 C.F.R. §§ 404.1527(e), 416.927(e); SSR 96-5p. The ALJ also considered the reports

of examining physicians Jasbreet Kaur, M.D., L. Vasallo, M.D., Richard Witlin, M.D.,

and Bernard Sarn, M.D. (R. at 18-21.) The ALJ thus observed that although Ruiz’s

“impairments . . . more-than-minimally restrict his capacity to perform basic work

activities,” the evidence did not establish that Ruiz “suffers from an impairment or

combination of impairments which meets or equals the level of severity of any

impairment described in 20 C.F.R. Part 404, Subpart P, Appendix 1, incorporated by 20

C.F.R. §§ 404.1525 and 416.925 [“the Listings”].” Id. at 18-19.

       The ALJ fully considered several factors -- including Ruiz’s daily activities, his

work record and his efforts to work -- and concluded that Ruiz’s subjective allegations

regarding his symptoms and limitations were not fully credible. Id. at 20-21. That

credibility assessment as well as medical and related evidence figured in the ALJ’s

determination respecting Ruiz’s residual functional capacity (“RFC”):

          After carefully weighing expert medical and other expert
          opinions regarding [Ruiz’s RFC], as well as [Ruiz’s] testimony

                                            -5-
           and the evidence of record, I find that [Ruiz] has had, at all
           material times, the [RFC] . . . for work involving lifting, and
           carrying objects weighing up to 20 pounds; frequently lifting and
           carrying objects weighing up to 10 pounds; standing, walking,
           and sitting up to six hours in an eight-hour day; pushing and
           pulling arm and leg controls; and light work not involving
           exposure to heights or dangerous machinery, and not otherwise
           requiring binocular vision.

Id. at 21-22.

       Significantly, there was no suggestion made before the ALJ that Ruiz suffered

from any mental impairment. On the contrary, Dr. Kaur’s report stated that Ruiz was

“attentive, cooperative with intact memory and judgment, able to ambulate without any

difficulty.” Id. at 273.

       Finally, after considering all the medical evidence, the testimony of the vocational

expert, and Ruiz’s age, poor education, inability to read English, and his lack of skills, the

ALJ found that Ruiz could no longer perform his past relevant work. The ALJ also

found, however, that there were a significant number of jobs that Ruiz could perform:

           In the region of Hudson, Essex, Union, Morris, and Bergen
           Counties, such jobs include a hardware assembler, who puts large
           pieces of hardware together; a folder, who folds textiles; a
           bagger, who places garments or other items into plastic bags; a
           packer, who places various goods into boxes or containers; a final
           assembler, who puts final touches on a product, like putting tags
           on it; a heat sealing machine operator, who basically places
           packages into a conveyor for sealing tops. These are unskilled
           light jobs. In the stated counties, there are about 1,300 such jobs.




                                             -6-
Id. at 22. The ALJ also determined that even if Ruiz could perform only sedentary work,

his RFC still qualified him to perform 18-20,000 sedentary, unskilled jobs in the New

York/New Jersey area. Id. at 22-23. Accordingly, the ALJ concluded “ that [Ruiz] has

not been disabled within the meaning of the Social Security Act . . . .” Id. at 23.

         On July 25, 2002, Ruiz filed suit in the U.S. District Court for the District of New

Jersey, claiming that the ALJ’s decision was not supported by substantial evidence. On

April 27, 2004, the District Court affirmed the ALJ’s decision, and Ruiz appealed to this

Court.


         B.     The Second Application

         On May 31, 2002, Ruiz submitted a new application to the SSA. In support of that

application, on April 29, 2003, Ruiz alleged for the first time that he was disabled

because he was mentally retarded. A new ALJ considered this application and, inter alia,

a consultative psychologist’s report that Ruiz was mentally retarded.

         On July 29, 2004 -- while Ruiz’s appeal from the earlier denial of benefits was

pending before this Court -- the ALJ ruled that Ruiz was disabled based on his mental

impairment. Ruiz and the Commissioner then jointly asked us to remand to the District

Court for an award of benefits. We granted that request on November 16, 2004. Ruiz v.

Comm’r of Soc. Sec., 189 Fed. Appx. 112, 113 (3d Cir. 2006). The District Court in turn

remanded the case to the SSA on June 15, 2005, which subsequently awarded Ruiz

benefits retroactive to September 30, 1998.

                                              -7-
       C.     Ruiz Seeks Counsel Fees

       On December 1, 2004, Ruiz sought prevailing party attorney’s fees and costs

totaling $7,490.61 “for legal work performed in the Federal Courts” in connection with

his first benefits application. On June 27, 2005, the District Court denied Ruiz’s motion,

ruling that he was not a prevailing party under the EAJA. Ruiz appealed to this Court.

On June 27, 2006, we reversed -- holding that Ruiz was a prevailing party -- and

remanded for a determination of whether the SSA’s litigation position was substantially

justified or whether special circumstances would make an award of fees unjust. Ruiz,

189 Fed. Appx. at 113.

       On August 2, 2006, the District Court determined that although no special

circumstances existed, the Agency’s litigation position was substantially justified.

Accordingly, the District Court denied Ruiz’s application for counsel fees.

       Ruiz filed a timely appeal with this Court.


IV.    STANDARD OF REVIEW

       We review the District Court’s denial of attorney’s fees for abuse of discretion.

See Pierce, 487 U.S. at 559; Morgan, 142 F.3d at 682-83.


V.     DISCUSSION

       Ruiz contends that the opposition to his benefits application could not have been

substantially justified because, with the Commissioner’s agreement, Ruiz was ultimately



                                             -8-
awarded benefits. Ruiz fails to distinguish, however, between his successful second

application -- in which he alleged mental impairment -- and his first -- in which he

unsuccessfully alleged only physical impairment. The fee application before us relates

exclusively to counsel’s efforts with respect to the first application. Accordingly, we

must decide whether the District Court abused its discretion in determining that the

Commissioner’s position respecting that first application was “substantially justified.” 28

U.S.C. § 2412(d)(1)(A). We conclude that the District Court acted within its discretion.

       Applying the three factors discussed in Morgan, it is apparent that the

Commissioner has met her burden. Morgan, 142 F.3d at 684 (citing Hanover, 989 F.3d at

128). First, the Commissioner had a reasonable basis in truth for opposing Ruiz’s

contention that he was physically disabled. Medical and vocational evidence, documents

provided to the SSA, and the testimony of Ruiz himself all supported the ALJ’s finding

that Ruiz was not disabled. Second, there was a reasonable basis in law for the theory the

Commissioner propounded. If Ruiz could not meet the Listings, he was not disabled as a

matter of law. See 20 C.F.R. § 404.1520; Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir.

2004). Finally, there was a reasonable connection between the facts alleged and the legal

theory advanced by the Commissioner. The record establishes that because Ruiz’s

physical impairments would not prevent him from performing numerous jobs in the local

economy, he was not disabled within the meaning of the Social Security Act.




                                            -9-
       It is thus apparent that the Commissioner’s position with respect to Ruiz’s first

benefits application was substantially justified. In these circumstances, the District Court

acted within its discretion when it denied Ruiz’s motion for attorney’s fees incurred

respecting the first disability application.

VI.    CONCLUSION

       For the reasons stated, we affirm the August 2, 2006 Order of the District Court.




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