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March 10, 1999


The opinion of the court was delivered by: Trager, District Judge.


Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (1994 & Supp. 1996), plaintiff, Jose Cruz, moves for the award of attorney's fees in relation to his successful appeal of the Social Security Administration's decision denying Mr. Cruz Supplemental Security Income benefits. Because the Commissioner's position opposing remand was not substantially justified by the evidence in the record, the motion is granted. However, because some of the fees requested are excessive, the government's request for reduction is also granted.


Plaintiff, Jose Cruz, filed an application for Supplemental Security Income ("SSI") benefits in September of 1994. Following denial of the application both initially and on reconsideration, the case was considered by Administrative Law Judge ("ALJ") Wallace Tannenbaum de novo. On April 2, 1996, after a hearing at which Cruz appeared pro se, the ALJ determined that Cruz was not disabled. On October 16, 1996, Cruz's request for review was denied by the Appeals Council, and on October 31, 1996, Cruz, having obtained counsel, filed a complaint in the Eastern District of New York and obtained a remand on August 20, 1997. See Cruz v. Callahan, Acting Commissioner Social Security Administration, No. 96 Civ. 5357 (E.D.N.Y. Aug 20, 1997).

Cruz's claim of disability during the administrative process was based on primarily physical disabilities. Cruz, a high school graduate fluent in English, suffered from back pain, chest pain, joint pain, partial numbness, and epileptic seizures, symptoms at least partially the result of a motor vehicle accident in 1981. He was also under treatment for alcoholism. Cruz complained that the pain made it impossible for him to work. The ALJ found Cruz's testimony as to pain not fully credible in light of the record. He further found, considering both exertional and non-exertional limitations, that Cruz had the capacity to perform sedentary work, limited only by his inability to work around heights, moving machinery and operating motor vehicles.*fn1 Finally, the ALJ noted in his decision that Cruz denied receiving psychiatric treatment.

The record before the ALJ contained numerous evaluations of Cruz's mental health; all but one were focused on his alcoholism. In only that one case did Cruz assert he was under psychiatric treatment. He denied it numerous times. The record included a Mental Residual Functional Capacity Assessment and a Psychiatric Review Technique (from February 1995). The former evaluated Cruz as "not significantly limited" in any of the categories in which he was tested, the latter recommended "slight" restrictions as a result of Cruz's alcoholism. In a 1993 patient history from Woodhull Medical and Mental Health Center ("Woodhull"), Cruz denied having a history of psychiatric problems. In a history taken as part of an alcoholism treatment program at Kings County Hospital in 1993, Cruz admitted to one suicide attempt (in the same year as his accident) and to an instance of assaultive ideation. Finally, when examined in 1994 by two doctors from Kings-M.D. Medical services, where he had gone "because sometimes I feel dizzy," Rec. at 140, he told one doctor, Dr. Marcuzzo, that he had no history of psychiatric treatment, suicide, or depression, but that he "used to drink a lot." Id. Dr. Marcuzzo concluded that Cruz's "allegations" were in keeping with the doctor's "findings." However, as related in a report dated the same day as Dr. Marcuzzo's (October 18, 1994), Cruz told another doctor at Kings-M.D., Dr. Grossman, that he had a 12 year history of psychiatric disorder, had attempted suicide, and was presently being treated by Dr. Medkovich, a psychiatrist at Woodhull. Dr. Grossman concluded that Cruz might be mildly impaired. He diagnosed a history of psychiatric disorder, made a psychiatric referral, and listed Cruz's prognosis as guarded.

The ALJ noted in his decision that Cruz denied receiving psychiatric treatment in a 1994 evaluation. The ALJ did not address the other 1994 evaluation. He had not asked Cruz specifically about a psychiatric disorder at his hearing, although he had enquired into what kind of treatment Cruz received at Woodhull, and whether there was anything that the ALJ should know. To the latter Cruz replied in the negative. To the former Cruz replied that he received medicines and a "physical checkup." Rec. at 33.

On his appeal to the district court, however, Cruz included with his motion a referral, dated May 21, 1997, from his treating psychiatrist, Dr. Holloway. That referral indicated that Cruz had been receiving regular psychiatric treatment from Dr. Holloway for the past eighteen months, that Cruz had severe depression, blindness in his right eye, and that, in conclusion, he could not work at all. The force of this new evidence resulted in a remand to the ALJ, pursuant to sentence six of 42 U.S.C. § 405(g) (1994). Subsequently, Cruz was assessed by the ALJ as having been disabled since August of 1994.

Presently, Cruz seeks an award of attorney's fees under the Equal Access to Justice Act ("EAJA") 28 U.S.C. § 2412(d).



Once a petitioner has successfully challenged government agency action in court, he or she is entitled to recover the costs of litigation so long as the "the position of the United States" was not "substantially justified" and "special circumstances [do not] make an award unjust." 28 U.S.C. § 2412(d)(1)(A). The "substantially justified" standard requires that the government's position was "justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988). Generally, if the basis for remand is evidence which was not available prior to the district court action, the award of attorney's fees is inappropriate because the Commissioner's decision was reasonable with regard to the evidence he had before him. Thus, a remand granted under sentence six of 42 U.S.C. § 405(g), as occurred in this case, is generally not grounds for an award of fees.

However, remand under sentence six of § 405(g) is not equivalent to a finding that the ALJ's decision was supported by substantial evidence, nor does it imply that, absent the new evidence which served as the basis for remand, the government's position was substantially justified. In this case, while the new evidence provided by the plaintiff upon appeal was overwhelmingly convincing of the need for remand, it was not the only possible basis. The ALJ has a responsibility to develop the record at the administrative level. See Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999). When a plaintiff appears pro se, that responsibility is even more pronounced. See Echevarria v. Secretary of Health and Human Serv., 685 F.2d 751, 755 (2d Cir. 1982). If, in failing to fulfill that duty, the ALJ leaves significant gaps in the record, a district court may remand for further development of the record pursuant to sentence four of § 405(g). See id. at 756-57; 42 U.S.C. § 405(g).

In the present case, while indications of psychiatric disorder were hidden within a conflicting record, it was nevertheless the ALJ's responsibility to assess that evidence and realize that there was an important gap in the record as it stood — namely, the possible history of psychiatric treatment. Although the claimant denied any history of psychiatric treatment, that is hardly surprising. Persons often deny receiving treatment from a psychiatrist. But, as the record before the ALJ contained both the location of the treatment, as well as the name of a physician, i.e., Dr. Medkovich, it would have been eminently possible to ascertain whether or not the indicated twelve year history of psychiatric disorder was, in fact, a reality, and whether or not it dictated a finding of disability. Having failed to complete the record, as required under the statute and ...

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