The opinion
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-2962
_____________
VICTORIA BEEKS,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 07-cv-3781)
District Judge: Hon. Susan D. Wigenton
_______________
Submitted Under Third Circuit LAR 34.1(a)
April 14, 2011
Before: FISHER, JORDAN and COWEN, Circuit Judges.
(Filed April 19, 2011)
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
Victoria Beeks appeals the order of the United States District Court for the District
of New Jersey denying her motion seeking attorney‟s fees and costs under the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. For the following reasons, we will
affirm.
I. Background
On December 10, 2004, Beeks filed a claim for disability insurance benefits and a
claim for supplemental security income based on an alleged disability that began on
October 1, 2002. Both claims were initially denied on April 22, 2005 and again upon
reconsideration on June 9, 2005. On July 12, 2005, Beeks requested a hearing before an
Administrative Law Judge (“ALJ”) and later testified at a hearing on September 9, 2005.
In an October 17, 2006 decision, the ALJ evaluated Beeks‟s disability claim using
the standard five-step analysis and determined that she was not disabled within the
meaning of the Social Security Act.1 The ALJ concluded that: (1) Beeks had engaged in
1
As established by regulation and precedent, disability claims require the
following analytical steps:
In step one, the Commissioner must determine whether the claimant is
currently engaging in substantial gainful activity. If a claimant is found to
be engaged in substantial activity, the disability claim will be denied. In
step two, the Commissioner must determine whether the claimant is
suffering from a severe impairment. If the claimant fails to show that her
impairments are “severe”, she is ineligible for disability benefits.
In step three, the Commissioner compares the medical evidence of
the claimant‟s impairment to a list of impairments presumed severe enough
to preclude any gainful work. If a claimant does not suffer from a listed
impairment or its equivalent, the analysis proceeds to steps four and five.
Step four requires the ALJ to consider whether the claimant retains the
residual functional capacity to perform her past relevant work. The claimant
bears the burden of demonstrating an inability to return to her past relevant
work.
If the claimant is unable to resume her former occupation, the
evaluation moves to the final step. At this stage, the burden of production
2
substantial gainful activity since the alleged onset date of her disability2; (2) Beeks had
severe impairments, including arthritis, high blood pressure, and asthma; (3) Beeks‟s
impairments did not meet or medically equal any of the impairments listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1; (4) Beeks had the residual functional capacity to
perform light work; and (5) Beeks was capable of performing past relevant work as a
school aide. Beeks requested review of the ALJ‟s decision, but was denied by the
Appeals Council on July 27, 2007, making the ALJ‟s decision the final decision of the
Commissioner of Social Security. Pursuant to section 205(g) of the Social Security Act,
42 U.S.C. § 405(g), Beeks filed a civil action for review of that decision.
The District Court effectively affirmed the decision, concluding that substantial
evidence in the form of medical examination results, medical reports, a medication list,
medical and work history, and Beeks‟s own testimony supported the finding that Beeks
shifts to the Commissioner, who must demonstrate the claimant is capable
of performing other available work in order to deny a claim of disability.
The ALJ must show there are other jobs existing in significant numbers in
the national economy which the claimant can perform, consistent with her
medical impairments, age, education, past work experience, and residual
functional capacity. The ALJ must analyze the cumulative effect of all the
claimant‟s impairments in determining whether she is capable of
performing work and is not disabled.
Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999) (citations omitted); see also 20
C.F.R. § 404.1520.
2
In a numbered heading in its opinion, the ALJ indicated that Beeks “ha[d] not
engaged in substantial gainful activity” since the alleged onset date. (App. at 7 (emphasis
added).) However, as the District Court and this Court previously indicated upon review,
the ALJ‟s analysis clearly indicates that the ALJ found the opposite – that Beeks had
engaged in substantial gainful activity – and the heading was merely a typographical
error. Accordingly, we dismiss without further discussion all of Beeks‟s arguments
predicated on a literal reading of that heading.
3
was not disabled. On appeal from that decision, we vacated and remanded for further
analysis at step one of the disability inquiry. Specifically, we directed remand so that the
ALJ could consider whether Beeks‟s earnings as a school aide after the alleged onset
date, which were less than the monthly average for presumed substantial gainful activity
under the earnings guidelines in 20 C.F.R. § 404.1574(b) (the “Earnings Guidelines”),
affected the conclusion that she had been engaged in substantial gainful activity.3
Beeks, having arguably prevailed on appeal, subsequently filed a motion for
attorney‟s fees and costs pursuant to EAJA, which the District Court denied. The District
Court concluded that the Social Security Administration was substantially justified in
adopting the ALJ‟s decision, reasoning that, even though the ALJ failed to address
Beeks‟s earnings under the Earnings Guidelines in its step one analysis, the ALJ‟s
analysis covered other relevant factors that gave the step one finding a reasonable basis.
3
The ALJ‟s failure to consider Beeks‟s earnings was a significant omission, since,
as we noted, “earnings derived from the work activity are generally the primary
consideration in evaluating the work for substantial gainful activity purposes.” Beeks v.
Comm’r of Soc. Sec., 363 F. App‟x 895, 896 (3d Cir. 2010). We also noted that the step
one analysis can affect the step four analysis, since Beeks‟s “past relevant work” as a
school aide must qualify as “substantial gainful activity,” and we sought clarification of
whether the ALJ‟s analyses of steps two through four were done in the alternative or
whether the ALJ proceeded past step one only as to the period after Beeks became
unemployed. Id. at 897-98.
4
II. Discussion4
Under EAJA, a prevailing party is entitled to attorney‟s fees and costs unless the
government‟s position was substantially justified or if special circumstances would make
the award unjust. 28 U.S.C. § 2412(d)(1)(A). The Social Security Administration does
not dispute that Beeks was a prevailing party under EAJA and does not assert any other
circumstances that would make the award unjust, so the only issue is whether the Social
Security Administration‟s position regarding Beeks‟s substantial gainful activity was
substantially justified.
We review a district court‟s determination of substantial justification under the
deferential abuse of discretion standard. Morgan v. Perry, 142 F.3d 670, 682 (3d Cir.
1998). “An abuse of discretion arises when the district court‟s decision „rests upon a
clearly erroneous finding of fact, an errant conclusion of law or an improper application
of law to fact.‟” Id. (quoting Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 127
(3d Cir. 1993)).
To be substantially justified under EAJA, a position taken by the government must
have been “„justified in substance or in the main‟ – that is, to a degree that could satisfy a
reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Stated another
way, the government‟s position must have had a “reasonable basis in both law and fact.”
Hanover Potato Prods. Inc., 989 F.2d at 128.
4
The District Court had jurisdiction pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3). We have jurisdiction pursuant to 28 U.S.C. § 1291.
5
Here, the District Court recognized that the ALJ had not specifically cited the
Earnings Guidelines or discussed why Beeks‟s modest earnings still allowed a finding of
substantial gainful activity. The District Court noted, however, that the ALJ did
meaningfully analyze other factors relevant to the substantial gainful activity inquiry,
including the following: (1) that, despite Beeks‟s attempt to characterize occasional help
from coworkers as an accommodation, she was never afforded formal special
accommodations at work; (2) that Beeks did not quit work due to disability but rather was
laid off due to funding cuts and continued working after the alleged onset of the
disability; (3) that, by collecting unemployment, Beeks had necessarily certified that she
was able to work, see N.J. STAT. ANN. § 43:21-4(c)(1); and (4) that Beeks‟s earnings
were the same as the unimpaired individuals performing the same occupation, working
the same amount of time.
Moreover, the Earnings Guidelines merely set presumptions regarding substantial
gainful activity.5 See 20 C.F.R. § 404.1574(a)(1) (“Generally, if you worked for
substantial earnings, we will find that you are able to do substantial gainful activity.”).
Those presumptions may be overcome. See id. (“[T]he fact that your earnings were not
substantial will not necessarily show that you are not able to do substantial gainful
activity.”). In fact, the regulatory scheme provides that the ALJ “will generally consider
5
In arguing that the Social Security Administration‟s reliance on the ALJ‟s
opinion is not substantially justified, Beeks treats the Earnings Guidelines presumptions
as threshold requirements. In actuality, however, they are simply presumptions that the
Social Security Administration may use “whenever they are appropriate.” 20 C.F.R.
§ 404.1574(a).
6
other information in addition to [a claimant‟s] earnings if there is evidence indicating that
[a claimant] may be engaging in substantial gainful activity.”6 Id. § 404.1574(b)(3)(ii).
Because the record here contains such evidence, the ALJ‟s failure to discuss Beeks‟s
earnings in relation to step one does not render the decision unreasonable, even though it
was certainly open to question. Accordingly, it was not an abuse of discretion for the
District Court to conclude that the ALJ‟s decision had a reasonable basis in law and fact
and that the Social Security Administration‟s adoption of it was substantially justified.
The District Court did not err, then, in denying Beeks‟s motion for fees and costs under
EAJA.
III. Conclusion
For the foregoing reasons, we will affirm the District Court‟s denial of Beeks‟s
motion for fees and costs under EAJA.
6
Among the additional information permitted to be considered is whether the
claimant‟s work is “comparable to that of unimpaired people in your community who are
doing the same or similar occupations,” 20 C.F.R. § 404.1574(b)(3)(ii)(A), which the
ALJ addressed in its opinion.
7