13-4454-cv; 12-2971-cv
Padula v. Colvin

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
7th day of May, two thousand fifteen.

Present:    GUIDO CALABRESI,
            ROSEMARY S. POOLER,
            REENA RAGGI,
                        Circuit Judges.
___________________________________________________

GERARD PADULA,

                                Plaintiff-Appellant,


                         v.                                                13-4454-cv
                                                                           12-2971-cv

CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY,

                        Defendant-Appellee.
___________________________________________________



Appearing for Appellants:              Mark Schneider, (Mark Curley, New York, N.Y., on the
                                       brief), Plattsburgh, N.Y.

Appearing for Appellees:               Susan Reiss, Special Assistant United States Attorney,
                                       (Richard S. Hartunian, United States Attorney for the
                                       Northern District of New York; Stephen Conte, Regional
                                       Chief Counsel, Office of the General Counsel, Social
                                       Security Administration, on the brief), New York, N.Y.
Appearing for Amicus Curiae:          Jared K. Carter, The Vermont Community Law Center,
                                      Burlington, V.T., on behalf of The National Alliance on
                                      Mental Illness of Champlain Valley.

     Appeal from the United States District Court for the Northern District of New York
(McAvoy, J.).

        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court is REVERSED and appellant’s fee
petition pending before this Court is GRANTED IN PART.

       Plaintiff-Appellant Gerard Padula appeals from the November 14, 2013 judgment of the
United States District Court for the Northern District of New York (McAvoy, J.), which denied
his application for attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412. Because the Commissioner failed to demonstrate that her position in defending the
ALJ’s denial of benefits was “substantially justified,” 28 U.S.C. § 2412(d)(1)(A), we reverse the
challenged judgment and remand for further proceedings.

        In the action giving rise to the application for fees, the Commissioner of Social Security
(“the Commissioner”) denied Padula’s application for Supplemental Security Income benefits,
and the district court affirmed that decision as supported by substantial evidence. On appeal
from the denial of benefits, this panel affirmed in part and vacated and remanded in part, holding
that the Administrative Law Judge (“ALJ”) had not complied with his obligation to consider all
the relevant medical and other evidence when it determined that Padula’s reported symptoms of
nausea and fatigue were not credible. We explained that the symptoms Padula reported were
supported by the medical records from his treating psychiatrist, “and there was nothing in the
description of Padula’s daily activities, previous work history, or observations by any employees
of the SSA that undermined these claimed symptoms.” Padula v. Astrue, 514 F. App’x 49, 51
(2d Cir. 2013). We therefore remanded to permit the ALJ to determine Padula’s residual
functional capacity “in light of ‘all of the relevant medical and other evidence.’” Id. (quoting 20
C.F.R. § 404.1545(a)(3)).

       After the case was remanded, Plaintiff moved for an award of attorney’s fees for work
performed before the district court prior to his successful appeal. The Commissioner opposed,
arguing that, even though Plaintiff is the prevailing party, EAJA fees are not warranted because
the Commissioner’s position was substantially justified. The district court agreed with the
Commissioner and denied EAJA fees.

        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).
“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.’” Ericksson v. Comm’r of Soc. Sec., 557 F.3d 79, 82 (2d Cir. 2009)
(quoting 28 U.S.C. § 2412(d)(2)(D)). “The government may lack substantial justification for its

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position even though it does not insist upon an unreasonable stance through to the resolution of a
case.” Envtl. Def. Fund, Inc. v. Watt, 722 F.2d 1081, 1086 (2d Cir. 1983).

        “The Government bears the burden of showing that its position was ‘substantially
justified,’ and to meet that burden, it must make a ‘strong showing’ that its action was ‘justified
to a degree that could satisfy a reasonable person.’” Healey v. Leavitt, 485 F.3d 63, 67 (2d Cir.
2007). Substantially justified does not mean “‘justified to a high degree,’ but rather ‘justified in
substance or in the main.’” Pierce v. Underwood, 487 U.S. 552, 565 (1988). As the Supreme
Court has explained, “the fact that one other court agreed or disagreed with the Government
does not establish whether its position was substantially justified.” Id. at 569. “To be
‘substantially justified’ means, of course, more than merely undeserving of sanctions for
frivolousness.” Id. at 566.

         We review a district court’s determination as to whether the government’s position was
substantially justified for an abuse of discretion. Sotelo-Aquije v. Slattery, 62 F.3d 54, 57 (2d
Cir. 1995). “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.” Ericksson, 557 F.3d at
82 (internal quotation marks omitted). On the record before us, the Commissioner has not
carried her burden of showing that her position was substantially justified. To be sure, the
Commissioner continues to urge a view of the evidence suggesting that it should have prevailed
on the merits of the prior appeal, but this reprise of arguments we previously found unavailing is
insufficient on its own to show that her “position . . . had a reasonable basis in both law and
fact.” Federal Election Comm’n v. Political Contributions Data, Inc., 995 F.2d 383, 386 (2d
Cir. 1993) (citing Pierce, 487 U.S. at 556 & n. 2).

        In her submissions to the district court and this Court, the Commissioner makes no
attempt to defend the ALJ’s failure to consider the treatment notes of Padula’s psychiatrist,
which recounted Padula’s complaints of fatigue and nausea, and revealed that he was being
prescribed medication to alleviate precisely these documented symptoms. The Commissioner’s
sole defense of its prior litigation position is its contention that the ALJ reasonably relied on the
treatment notes for several individual visits, where Padula failed to report nausea, fatigue, or side
effects of his medication. We are no more persuaded in the present appeal than we were in the
last that a fair reading of the entire record then before the ALJ justified the ALJ’s adverse
credibility determination.

         In ruling that the Commissioner’s litigation position was substantially justified, the
district court emphasized that portion of our merits decision wherein we noted that “[i]n
analyzing the record on remand, the ALJ remains free to consider evidence regarding any effect
Padula’s drug and alcohol use may have had on his asserted symptoms, and also to develop the
administrative record to the extent necessary to make this and any other determinations on the
extent and causes of Padula’s symptoms.” Padula, 514 F. App’x at 51 (internal citations
omitted). Based on this language, the district court observed that our decision was “not a
resounding rejection of the Commissioner’s position in this matter.” Padula v. Colvin, No. 8:11
civ. 00607, 2013 WL 6057857, at *4 (N.D.N.Y. Nov. 14, 2013). The possibility that benefits
might properly be denied on a different basis on remand does not, however, mean that the

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Commissioner was substantially justified in arguing that the ALJ’s initial decision, made without
adequate record development, was supported by substantial evidence.

         Accordingly, we find, on the record before us, that the Commissioner has not carried its
burden of showing that the position of the United States was substantially justified. We therefore
hold that Padula is entitled to a fee award. We take no position on whether the amount of
Padula’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).

        We grant in part Padula’s motion for fees filed in this Court. Padula’s request for 81.8
hours for work performed in this Court, however, is excessive. Here, using two attorneys in a
routine social security appeal led to a duplication of efforts, and 81.8 hours amounts to over
double the amount of hours courts within this Circuit typically award for routine social security
cases. See, e.g., Parsons v. Comm’r of Soc. Sec., No. 07-CV-1053, 2008 WL 5191725, at *1
(N.D.N.Y. Dec. 10, 2008) (“In the Northern District of New York, as well as in other districts
within the Second Circuit, the average time approved by courts for routine social security
disability cases ranges from twenty to forty hours.” (collecting cases)). Accordingly, we reduce
the fees request by 40% to 49.1 hours.

        For the foregoing reasons, we REVERSE the order of the district court and REMAND
the case for the assessment of the appropriate amount of fees and costs under the EAJA. We
GRANT IN PART Padula’s request for fees for work performed in this Court.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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