ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Before: GIBBONS, BECKER and VAN DUSEN, Circuit Judges
This is an appeal from a denial by the district court of a petition for attorney's fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(A) (1982).
Plaintiff Doyle Tressler alleges that he became disabled in May 1980, at age 34, from degenerative disc syndrome. From February 1965 through June 2, 1980, Tressler was employed at American Color and Chemical Corporation, Lock Haven, Pennsylvania, in various capacities including those of pipe fitter and arc welder. He testified that, while at work on May 31, 1980, he felt a terrible pain in his back and reported to the dispensary. The doctor in charge told Mr. Tressler to "take it easy." Tressler testified that he worked for the remainder of the week but while at home he again hurt his back, felt his leg go numb "with terrific pains," and fell down. He was taken to the emergency room of the Lock Haven State Hospital where the attending physician checked him for signs of stroke. Finding none, the physician told him to go home for a few days and to "take it easy." Tressler has not worked since that date.
On November 6, 1980, Tressler filed an application for disability insurance benefits claiming that he had become disabled on May 31, 1980 due to a disc syndrome: on February 23, 1981, he filed an application for SSI benefits based upon the same disability.
On the basis of the medical evidence on the record and the testimony of Tressler at the hearing, an administrative law judge found that Tressler had suffered from a severe back impairment, variously categorized as degenerative disc disease L5-A1, disc syndrome, and possible ruptured lumbar disc; that the existence of this severe back impairment had been established by clinical findings, including absence of reflex in the right leg, numbness in leg and foot, paresthesia, and also by the results of objective diagnostic studies, consisting of x-ray examination, lumbar myelogram, and lumbar venogram; that Tressler's symptoms included severe back pain, radicular syndrome, pain and weakness in the leg and foot, paresthesia, and greatly restricted capacity for physical activity; that his testimony with regard to symptomatology was fully credible and therefore he was disabled and entitled to disability benefits.
The Appeals Council of the Social Security Administration (hereinafter "AC") elected to review this decision on its own motion and notified Tressler that it proposed to find that Tressler was not disabled. Tressler was given an opportunity to present written argument to the AC. No additional evidence was presented to the AC. The AC found that the medical evidence revealed that Tressler's back condition caused severe impairment which significantly restricted this ability to perform work activities. However, the AC also found that Tressler retained the capacity to perform sedentary work as defined by the regulations. In reaching its conclusion, the AC discounted the testimony of Tressler's physician, Dr. Dolan, whose opinion it was that Tressler was totally disabled. The AC did not identify any other expert opinion or other evidence supporting its rejection of Dr. Dolan's conclusion. The AC found that plaintiff was not disabled and reversed the decision of the administrative law judge. The decision of the AC represents the final decision of the Secretary.
The final decision of the AC was appealed to the United States District Court for the Middle District of Pennsylvania pursuant to 42 U.S.C. § 1383(c)(3). The Magistrate to whom the case was referred found no medical evidence to support the AC's conclusion that Tressler had residual functional capacity to perform work related activities. The Magistrate found that since there was substantial medical evidence to support the ALJ's findings as to the credibility of Tressler's reports of pain, and since there was no evidence to the contrary, the AC's decision to review this case on its own motion was contrary to its own regulations. The Magistrate also found that the decision adopted by the AC was not supported by substantial evidence.
The district judge issued an Order and Judgment approving and adopting the Report and Recommendation of the Magistrate, and accordingly, ordered that the government's motion for summary judgement be denied and that Tressler's cross-motion for summary judgment be granted. The court entered summary judgment in favor of Tressler and against the defendant for a period of disability commencing on May 31, 1980 and awarding appropriate disability insurance and supplemental security income benefits pursuant to the Social Security Act as a result thereof.
Tressler then filed a Motion for Attorney's Fees pursuant to the EAJA, asserting that the action of the AC was not "substantially justified." The district court denied the motion noting that there was "some reasonable basis in the record for the Appeals Council's reversal of the Administrative Law Judge's decision . . .", App. 24, and that "there was a reasonable basis for the Appeals Council to decide that the Plaintiff was ...