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SILVA v. BOWEN

March 9, 1987

Antolin Silva
v.
Otis R. Bowen, M.D., Secretary of Health and Human Services



The opinion of the court was delivered by: NEWCOMER

Newcomer, J.

 MEMORANDUM

 Newcomer, J.

 I have before me in this social security appeal plaintiff's petition for attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(A). Under the EAJA, an award of fees is available in such cases to a prevailing party other than the United States "unless the court finds that the position of the United States was substantially justified." Id.

 As the Third Circuit Court of Appeals explained in Washington v. Heckler, 756 F.2d 959, 961 (3d Cir. 1985), the following general standards apply to the district court's determination:

 
The position of the United States includes not only its litigation position but also the agency position that made the lawsuit necessary. Substantial justification "constitute[s] a middle ground between an automatic award of fees to a prevailing party and an award made only when the government's position was frivolous." The burden of proving substantial justification is on the government. To meet its burden, the government must show: (1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for the theory it propounds; and (3) a reasonable connection between the facts alleged and the legal Theory advanced. (Citations omitted.)

 In the instant case, the plaintiff was a 49 year old man suffering from complications deriving from his diabetes mellitus. In particular, plaintiff has a condition known as hyperpathia, or peripheral neuropathy, which is defined as "abnormally exaggerated subjective response to painful stimuli. See Memorandum and Order of September 25, 1986 at 2. This is a "listed impairment" in Social Security Regulations part 404, Appendix 1, § 9.08A. The fact that plaintiff suffered from this impairment and the degree to which it impeded his ability to work and perform other tasks was well documented and supported by ample medical evidence.

 The government now contends that, despite losing on the merits, the position it took was substantially justified. I disagree. The Administrative Law Judge refused plaintiff's claim only by disregarding evidence and substituting his own medical judgments for that of competent medical witnesses. He also misconstrued the applicable regulations, and showed a complete lack of understanding of the impairment for which plaintiff sought benefits. In my Memorandum and Order of September 25, 1986, awarding benefits, I wrote the following:

 
"The ALJ's conclusions, to the extent relevant, are unsupported with the facts of the case and under the Social Security regulations." Id. at 4.
 
"Despite the ALJ's conclusions, this listed impairment is precisely the impairment upon which the plaintiff bases his claim of disability." Id.
 
"The ALJ does not cite any evidence from the record to support his conclusion that plaintiff does not have a listed impairment. Indeed, the "Evaluation of the Evidence" portion of [the] decision of the ALJ fails even to cite and reject the particular evidence supporting plaintiff's claim. Id. at 5.
 
"Even more egregious is the ALJ's analysis of plaintiff's hyperpathia . . . [the ALJ's] interpretation is patently incorrect." Id. at 6.
 
"Generally, the ALJ's conclusion simply substitutes his own judgment for the contrary medical judgments of four . . . physicians." Id. at 6-7.

 Under these circumstances, I don't know how the government's position in litigating this claim could possibly be ...


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