Don WOLVERTON, Plaintiff-Appellee, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellant

The Secretary of Health and Human Services appeals an award of attorneys’ fees under the Equal Access to Justice Act (EAJA), Pub.L. No. 96-481, Title II, 94 Stat, 2325 (1980). The issues are (1) whether a Social Security Act fees provision precludes application of the EAJA, (2) whether fees generated before the EAJA’s effective *582 date are compensable, and (3) whether the Secretary’s position in this case has been substantially justified.

FACTS

Wolverton, a 57-year-old construction electrician, contends that because of an automobile accident he was totally disabled as of December 31, 1976. His disability claim filed with the Social Security Administration was denied by an administrative law judge (ALJ). The agency Appeals Council upheld that decision.

Wolverton challenged the administrative decision in district court and it was reversed and remanded for rehearing. The district court held that the ALJ applied incorrect legal standards or the decision was not based on substantial evidence.

On remand, the ALJ requested that Wol-verton undergo further medical and psychological examinations, at government expense. He refused. The ALJ denied the claim for benefits, finding that…

concurring and dissenting:

I agree with the majority opinion’s holding that the Equal Access to Justice Act applies to Social Security appeals, but disagree with its application of the Act to the present case.

In particular, I do not believe that the district court properly awarded attorney’s fees for either of Wolverton’s two appeals to the district court. As the district court and the majority here acknowledge, all available objective medical tests supported the ALJ’s initial decision to deny disability payments to Wolverton. The ALJ found that testimony concerning the severity and frequency of Wolverton’s headaches and dizziness was “not convincing,” and concluded that his impairments were not “of such severity as to preclude his engaging in substantial gainful activity.” The district court’s decision that objective medical evidence alone was insufficient to support the ALJ’s decision has not been appealed and is not subject to review here. Regardless of the correctness of that decision, however, the Government’s conduct was reasonable. I believe that the district court abused its discretion by finding that the Government’s defense of the initial appeal to the district court,…

726 F.2d 580 4 Soc.Sec.Rep.Ser. 118, Unempl.Ins.Rep. CCH 15,168 Don WOLVERTON, Plaintiff-Appellee, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellant. No. 82-3590. United States Court of Appeals, Ninth Circuit. Argued Aug. 1, 1983. Submitted Sept. 8, 1983. Reassigned Jan. 31, 1984. Decided Feb. 24, 1984. Nick Chenoweth, Orofino, Idaho, for plaintiff-appellee. William Kanter, Asst. U.S. Atty., Washington, D.C., for defendant-appellant. Appeal from the United States District Court for the District of Idaho. Before WRIGHT, SKOPIL, and POOLE, Circuit Judges. EUGENE A. WRIGHT, Circuit Judge: 1 The Secretary of Health and Human Services appeals an award of attorneys' fees under the Equal Access to Justice Act (EAJA), Pub.L. No. 96-481, Title II, 94 Stat. 2325 (1980). The issues are (1) whether a Social Security Act fees provision precludes application of the EAJA, (2) whether fees generated before the EAJA's effective date are compensable, and (3) whether the Secretary's position in this case has been substantially justified. FACTS 2 Wolverton, a 57-year-old construction electrician, contends that because of an automobile accident he was totally disabled…