Unpublished Disposition, 874 F.2d 816 (9th Cir. 1983)
Annotate this CaseDavid PERMINTER, Plaintiff-Appellant,v.Otis R. BOWEN, Defendant-Appellee.
No. 87-6716.
United States Court of Appeals, Ninth Circuit.
Submitted* April 27, 1989.Decided May 1, 1989.
Before HUG, SCHROEDER and LEAVY, Circuit Judges.
MEMORANDUM**
David Perminter appeals the district court's denial of his motion for attorney's fees under the Equal Access to Justice Act (EAJA) following his suit for disability benefits. We affirm.
Facts and Proceedings
David Perminter injured his knee on June 14, 1982. On June 29, 1982 he applied for Supplemental Security Insurance and disability insurance benefits. The Secretary of Health and Human Services (Secretary) initially denied his application. After a hearing on March 2, 1983, the Administrative Law Judge (ALJ) found that although the injury precluded Perminter from returning to his former heavy work, he was able to perform sedentary work within ten months of his injury. The ALJ thus concluded that Perminter had been disabled for a period less than the required twelve month period of disability and therefore denied his application for benefits. The ALJ's decision became the final decision of the Secretary on August 23, 1983.
In October 1983, Perminter appealed to the district court who referred the case to a magistrate, who recommended affirming the Secretary's decision. The district court adopted this recommendation. In June 1985, another panel of this court reversed, finding that the Secretary's finding that Perminter was not disabled continuously for the requisite twelve month period was not supported by substantial evidence. See Perminter v. Bowen, 765 F.2d 870, 871 (9th Cir. 1985). We held that the Secretary mistakenly relied on the medical-vocational guidelines in finding Perminter not disabled, because the guidelines failed to consider Perminter's pain, a nonexertional limitation. Id. at 872. Since there was no other evidence presented regarding specific jobs Perminter was capable of performing within the statutory twelve month period, this court concluded that Perminter was entitled to disability benefits. Id.
Perminter then moved for attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"). The district court denied Perminter's motion. He timely appeals.
DISCUSSION
The Equal Access to Justice Act (EAJA) provides for the award of attorney's fees to the prevailing party in a civil suit against the United States unless the court finds that the position of the United States was substantially justified. 28 U.S.C. § 2412(d) (1) (A). Substantially justified is defined as justified to a degree that could satisfy a reasonable person, or, as a position that has a reasonable basis in both law and fact. See Pierce v. Underwood, 108 S. Ct. 2541, 2543 (1988); Albrecht v. Heckler, 765 F.2d 914, 915 (9th Cir. 1985). The existence of "some evidence" supporting the Secretary precludes a finding that the Secretary's position was not substantially justified. Albrecht, 765 F.2d at 916.
Perminter contends that the Secretary's position lacked a reasonable basis in law. We disagree.
Prior to Perminter's application for benefits in July 1982, no case authority existed that clearly identified pain as a nonexertional limitation that precluded the Secretary's sole reliance on the grids. In fact, prior case authority clearly authorized reliance on the grids even where a nonexertional limitation like pain was alleged by the claimant.1 Heckler, 721 F.2d 1179, 1181 (9th Cir. 1983).
In December 1983, two months after Perminter filed his complaint in district court, we held that if the grids fail to accurately describe a claimant's particular limitations, the Secretary may not rely on them alone to show the availability of jobs for that claimant. Stone v. Heckler, 772 F.2d 464, 468 (9th Cir. 1983). However, we did not classify pain as a nonexertional limitation totally precluding application of the grids. See also Gallant v. Heckler, 753 F.2d 1450, 1457 (9th Cir. 1984) (grids cannot be applied mechanically in lieu of a vocational expert's testimony where the claimant possesses limitations that are not covered by the guidelines).
Perminter also asserts that the Secretary's position lacked a reasonable basis in fact. The Secretary initially denied Perminter's application for benefits based on her finding that Perminter would not be disabled for a continuous twelve month period.2
Perminter is not entitled to EAJA fees because there was evidence in the record that supported a finding that Perminter's disability would not last for 12 months, and providing a reasonable basis in fact for the Secretary's position.
On March 11, 1983, about nine months after Perminter's disability began, Dr. Kenneth Boddie stated that Perminter's knee was showing gradual improvement with an increase in range of motion from none to a range of from zero to seventy-two degrees. Dr. Boddie also stated that due to pain and swelling in his knee, Perminter could not perform any activity requiring prolonged standing or walking, and could not lift any object over twenty pounds. This evidence supported the Secretary's conclusion that Perminter's disability would not last continuously for twelve months because the limitations on his range of activities did not prevent him from engaging in substantial gainful sedentary activities.3 See Albrecht, 765 F.2d at 916 ("some evidence" existed precluding finding that Secretary was unjustified where there existed conflicting evidence of claimants disability and ALJ relied on nontreating and not on treating physician's recommendations).
AFFIRMED.
The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
Before the grids were adopted this court held that the Secretary could not simply state that a claimant could engage in sedentary work without considering the testimony of a vocational expert or some other reliable evidence of the claimants ability to engage in other occupations. Hall v. Secretary of Health Education and Welfare, 602 F.2d 1372, 1377 (9th Cir. 1979). However, because this authority predated the grids, it was not unreasonable for the Secretary to rely on the guidelines to support her assertion that Perminter could perform sedentary work
To establish disability a claimant must have an impairment that is medically determinable and expected to last for a continuous period of at least twelve months. 20 C.F.R. Sec. 404.1545 (1987)
Sedentary work is performed primarily in the seated position and requires no more than ten pounds of lifting. 20 C.F.R. Secs. 404.1567(a) and 416.967(a) (1987)
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
