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USKOKOVIC v. SULLIVAN

July 16, 1991

PREDRAG USKOKOVIC, Plaintiff,
v.
LOUIS SULLIVAN, M.D., Secretary of Health and Human Services, Defendant


John A. Nordberg, United States District Judge.


The opinion of the court was delivered by: NORDBERG

JOHN A NORDBERG, UNITED STATES DISTRICT JUDGE

 This social security disability benefits appeal is before the court on the motion of plaintiff, Predrag Uskokovic, for $ 9,587.74 in attorneys' fees and $ 1000 in costs pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. ยง 2412. For the reasons set forth below, the court grants Uskokovic's motion for fees but adjusts the sums requested.

 BACKGROUND

 On March 20, 1986, Uskokovic applied for disability benefits with the Secretary of Health and Human Services, alleging disability dating from February 1985, due to a back injury. In a decision dated June 30, 1987, after an administrative hearing on the application, an Administrative Law Judge ("ALJ") found that Uskokovic had been disabled since December 18, 1986, due to an affective disorder from a back injury and a psychological overlay to those physical problems. The Appeals Council denied Uskokovic's request for review of the decision by letter dated January 25, 1988.

 Uskokovic sought judicial review of the decision, claiming that his disability began in February 1985, not in December 1986. The court remanded the case for further administrative proceedings, and on December 28, 1990, a different ALJ issued a decision finding that Uskokovic had, in fact, been disabled since February 1985, as he had argued all along. Accordingly, Uskokovic was awarded back benefits covering the period from March 1985 through December 1986.

 ANALYSIS

 Substantially Justified.

 The Secretary opposes the present motion for attorneys' fees, because he claims that his position in opposing the earlier disability onset date was "substantially justified." Section 2412(d)(1)(A) provides in relevant part:

 
except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action . . . including proceedings for judicial review of agency 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.

 (emphasis added). The Supreme Court has explained that the term "substantially justified" does not mean "'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." Pierce v. Underwood, 487 U.S. 552, 108 S. Ct. 2541, 1550, 101 L. Ed. 2d 490 (1988). This definition comports with the Seventh Circuit's interpretation of the phrase. Id. citing Ramos v. Haig, 716 F.2d 471, 473 (7th Cir. 1983) ("substantially justified" means reasonable basis both in law and in fact).

 In the administrative decision of December 28, 1990, which adopted the position of Uskokovic, the ALJ found that the claimant suffers from severe discogenic disease of the lumbar spine and severe depression. The ALJ found that while the physical problems might not ordinarily cause the disabling pain claimed by Uskokovic, the psychological component enhanced the pain. The ALJ concluded that Uskokovic is clearly disabled. In addition, he determined the onset date of the disability to be March 1, 1985, "based largely on the testimony of Dr. Reich." Dr. Reich's testimony was not part of the record before the first ALJ to consider the case, and the psychological assessments of Uskokovic that were considered in conjunction with the June 30, 1987 decision did not suggest the point at which he became disabled. Therefore, this court must decide whether the Secretary's position that December 18, 1986 constituted the disability onset date was "justified to a degree that would satisfy a reasonable person." Pierce [slip op.] at 12.

 In Lichter v. Bowen, 814 F.2d 430 (7th Cir. 1987), the Seventh Circuit analyzed Social Security Ruling 83-20, which describes how the Social Security Administration should determine the onset date of a disability. The court explained:


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