OpenJurist

779 F2d 51 Harley Large v. Secretary of Health and Human Services

779 F.2d 51

HARLEY C. LARGE, Plaintiff-Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

84-5839

United States Court of Appeals, Sixth Circuit.

10/25/85

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

AFFIRMED

E.D.Tenn.

ORDER

BEFORE: KEITH, KENNEDY and KRUPANSKY, Circuit Judges.

1

Plaintiff is appealing from a district court order denying his request for attorneys' fees under the Equal Access to Justice Act, 28 U.S.C. Sec. 2412. The case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration of the briefs and record, this panel agrees unanimously that oral argument is not necessary. Rule 34(a), Federal Rules of Appellate Procedure.

2

In 1975, plaintiff was awarded Social Security disability benefits. In August of 1982, the Social Security Administration determined, on the basis of recent medical evidence, that plaintiff's disability ceased and terminated benefits. On February 3, 1984, plaintiff filed a complaint for judicial review of the administrative decision under 42 U.S.C. Sec. 405(g). Upon consideration, the district court found that the decision was not supported by substantial evidence and awarded summary judgment for the plaintiff. The administrative decision was reversed and the case was remanded with instructions to reinstate plaintiff's benefits.

3

On June 27, 1984, plaintiff requested the district court to award attorneys' fees pursuant to the Equal Access to Justice Act. By memorandum and order filed July 23, 1984, the district court denied plaintiff's request on the basis that the Government's position had been reasonable under the circumstances.

4

Upon examination of the record, we agree with the district court's conclusion that the Government's case had a reasonable basis in law and fact and was, therefore, 'substantially justified' under 28 U.S.C. Sec. 2412(d)(1)(A). Howard v. Heckler, 581 F.Supp. 1231, 1233 (S.D. Ohio 1984). See also Kreimes v. Department of Treasury, 764 F.2d 1186, 1190-91 (6th Cir. 1985); Wyandotte Savings Bank v. NLRB, 682 F.2d 119, 120 (6th Cir. 1982); Couch v. Secretary of Health & Human Services, 746 F.2d 359 (6th Cir. 1984). We note particularly the reports of Dr. Fred A. Killeffer dated March 10, 1978, March 30, 1979, November 9, 1981, and May 17, 1982. We also note the report of Dr. William A. Paulsen dated February 7, 1983. While these reports may not be sufficient to constitute substantial evidence, they do provide a reasonable basis for the Government's position.

5

It appears that the question on which decision of this cause depends is so unsubstantial as not to need further argument. Rule 9(d)(3), Rules of the Sixth Circuit.

6

Therefore, it is ORDERED that the final order of the district court be affirmed.