Miles Ex Rel. J.M. v. Astrue

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
8