         11-4966
         Miles v. Astrue

                                 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.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 9th day of November, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                DENNY CHIN,
 8                         Circuit Judges,
 9                DAVID G. LARIMER,*
10                         District Judge.
11
12
13       Carol A. Miles, as Parent and Natural
14       Guardian o/b/o J.M., an Infant,
15
16                                                    Plaintiff-Appellant,
17
18                      v.                                                                 11-4966
19
20       Michael J. Astrue, as Commissioner
21       of Social Security,
22
23                                                    Defendant-Appellee.
24
25
26
27       FOR APPELLANT:                Michael D. Hampden, Partnership for
28                                     Children’s Rights, New York, NY.
29
30       FOR APPELLEES:                Susan D. Baird, Sarah S. Normand,
31                                     Assistant United States Attorneys, for

                *
                The Honorable David G. Larimer, of the United States
         District Court for the Western District of New York, sitting by
         designation.
1                        Preet Bharara, United States Attorney for
2                        the Southern District of new York, New
3                        York, NY.
4
5         Appeal from the United States District Court for the
6    Southern District of New York (Gorenstein, M.J.).
7
8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

9    AND DECREED that the judgment of the United States District

10   Court for the Southern District of New York is AFFIRMED.

11       Plaintiff-Appellant Carol A. Miles ("Miles"), on behalf

12   of J.M., her minor son, appeals from an October 3, 2011

13   post-judgment order of the United States District Court for

14   the Southern District of New York (Gorenstein, M.J.),

15   denying Miles’s motion for an award of attorney's fees and

16   expenses under the Equal Access to Justice Act ("EAJA"), 28

17   U.S.C. § 2412(d).   Miles initiated the underlying suit

18   challenging the ALJ's March 25, 2008 decision denying

19   Miles’s claim for benefits.   On April 8, 2011, the district

20   court issued a decision reversing the ALJ’s decision and

21   remanding for a calculation of benefits.   Miles ex rel. J.M.

22   v. Astrue, 775 F. Supp. 2d 715 (S.D.N.Y. 2011).   On October

23   3, 2011, the district court denied Miles’s application for

24   EAJA fees reasoning that "the Commissioner has satisfied his

25   burden of showing that his position had a reasonable basis

26   in law and fact."   Miles ex rel. J.M. v. Astrue, No. 09-civ-


                                    2
1    10296 (GWG), 2011 WL 4597544, at *1 (S.D.N.Y. Oct. 3, 2011).

2    The panel has reviewed the briefs and the record in this

3    appeal and agrees unanimously that oral argument is

4    unnecessary because “the facts and legal arguments [have

5    been] adequately presented in the briefs and record, and the

6    decisional process would not be significantly aided by oral

7    argument.”   Fed. R. App. P. 34(a)(2)(C).   We assume the

8    parties’ familiarity with the underlying facts, the

9    procedural history, and the issues on appeal.

10       Under the EAJA, the prevailing party in a civil suit

11   against the government will be awarded attorney’s fees and

12   costs "unless the court finds that the position of the

13   United States was substantially justified or that special

14   circumstances make an award unjust."   28 U.S.C. §

15   2412(d)(1)(A).   To be "substantially justified" the position

16   must be "justified in substance or in the main—that is,

17   justified to a degree that could satisfy a reasonable

18   person," and it must have a "reasonable basis both in law

19   and fact."   Pierce v. Underwood, 487 U.S. 552, 565-66 (1988)

20   (citations and internal quotation marks omitted).     When

21   analyzing the government’s position, both the underlying

22   agency determination affecting the party and the

23   government’s litigation strategy in defense of the

                                   3
1    determination are considered.       28 U.S.C. § 2412(d)(2)(D);

2    Smith v. Bowen, 867 F.2d 731, 734 (2d Cir. 1989).       We apply

3    a deferential standard of review in determining whether EAJA

4    fees are appropriate because some of the elements bearing on

5    whether the government’s position was substantially

6    justified "may be known only to the district court," and the

7    "district court may have insights not conveyed by the

8    record."   Pierce, 487 U.S. at 560.

9        The district court did not abuse its discretion in

10   concluding that the government’s position had a reasonable

11   basis in law and fact.   As the district court noted, there

12   was evidence in the record to support the government’s

13   position on the decisive issue—whether J.M. had less than a

14   marked limitation in the domain of interacting and relating

15   with others.

16       Miles counters that the government’s position cannot be

17   substantially justified because the district court’s denial

18   of fees on the ground that the case was "a close one" is

19   "wholly irreconcilable" with its merits decision in which it

20   found that the record contained "almost no evidence to

21   support [the ALJ’s] finding with respect to the decisive

22   issue in the case."   Appellant’s Br. at 14.      But Miles

23   ignores that the merits decision and fees decision are

                                     4
1    governed by different standards.   As we have noted, "there

2    is no congruence between the ‘substantial evidence’ standard

3    and the ‘substantially justified’ standard."     Sotelo-Aquije

4    v. Slattery, 62 F.3d 54, 58 (2d Cir. 1995).     Thus, "a

5    reversal based on the hazy contours of the substantial

6    evidence rule does not necessarily mean that the position of

7    the Government was not substantially justified."     Cohen v.

8    Bowen, 837 F.2d 582, 585 (2d Cir. 1988) (internal quotation

9    marks omitted).

10       Miles also has not demonstrated that the government’s

11   position is without a reasonable basis in law.     First, Miles

12   contends that the ALJ concluded that J.M.’s lack of

13   behavioral problems precluded a finding of disability in

14   direct contravention of Social Security Ruling 09-5p, 74

15   Fed. Reg. 7,515, 7,516 (Feb. 17, 2009).     But this ruling

16   became effective in March 2009—exactly one year after the

17   ALJ’s denial of benefits.   Id. at 7,518.    The question of

18   substantial justification is "not what the law now is, but

19   what the Government was substantially justified in believing

20   it to have been."   Pierce, 487 U.S. at 561.    In any event,

21   the ALJ did not hold that J.M. had less than a marked

22   limitation in the domain of interacting and relating with

23   others because he did not have behavioral problems.        Rather,

                                   5
1    the ALJ was explaining that behavioral issues were among the

2    pieces of evidence that "indicate[] a less than marked

3    social limit,” which is entirely consistent with the Social

4    Security Ruling.   Tr. 26.

5          The ALJ’s failure to consider 20 C.F.R. §

6    416.926a(e)(2)(iii) also does not establish that the

7    government’s position had no reasonable basis in law.     That

8    regulation provides that a child will be found to have a

9    "‘marked limitation when [the child has] a valid score that

10   is two standard deviations or more below the mean, but less

11   than three standard deviations, on a comprehensive

12   standardized test designed to measure ability or functioning

13   in that domain," and if the child's "day-to-day functioning

14   in domain-related activities is consistent with that score."

15   Id.   Miles argues that J.M.’s CELF-4 test qualifies as a

16   comprehensive standardized test and, thus, "compelled a

17   finding of marked limitation" in the domain of interacting

18   with others.   Appellant's Br. at 18.   We disagree.

19         Even assuming that the CELF-4 test must be treated as a

20   comprehensive standardized test in this domain, it does not

21   follow that J.M. was disabled.    In order to meet the

22   standard in the regulation, a child must also demonstrate

23   that his “day-to-day functioning in domain-related

                                   6
1    activities is consistent with that score.”     20 C.F.R. §

2    416.926a(e)(2)(iii).    In this vein, the same evidence that

3    provided support for the ALJ’s decision that J.M. did not

4    have a marked limitation in the domain of interacting and

5    relating with others serves as a basis for showing that

6    J.M.'s "day-to-day functioning in domain-related activities"

7    was inconsistent with a marked limitation in the domain

8    under 20 C.F.R. § 416.926a(e)(2)(iii).

9        This is not, as Miles contends, post hoc

10   rationalization for the ALJ’s decision.     Rather, it

11   demonstrates that because the regulation does not compel a

12   finding of disability based on one standardized test, Miles

13   cannot establish that the ALJ's decision had no reasonable

14   basis in law.    Indeed, other regulations reinforce that the

15   existence of one test score does not entitle a claimant to a

16   finding of disability as a matter of law.     See 20 C.F.R. §

17   416.924a(a)(1)(ii); id. § 416.926a(e)(4)(i)-(ii).

18   Specifically, the ALJ is instructed to “consider all of the

19   relevant information in [the] case record and will not

20   consider any single piece of evidence in isolation.”     Id. §

21   416.924a(a)(1)(ii).

22       We have considered Miles’s remaining arguments and,

23   after a thorough review of the record, find them to be

24   without merit.

                                    7
1       For the foregoing reasons, the judgment of the district

2   court is hereby AFFIRMED.

3                               FOR THE COURT:
4                               Catherine O’Hagan Wolfe, Clerk
5




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