Hernandez v. Barnhart

*Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
October 12, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-51615
Summary Calendar
DAWN HERNANDEZ,
Plaintiff-Appellant,
versus
JO ANNE B BARNHART, Commissioner,
Social Security Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
(04-CV-1070)
Before STEWART, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
The issue before this court is whether the district court abused its discretion when denying
Dawn Hernandez’s claim for attorney’s fees under the Equal Access to Justice Act (“EAJA”). § 28
U.S.C. 2414. For the following reasons, we affirm.

-- 1 of 4 --

2
FACTUAL AND PROCEDURAL BACKGROUND
In 2004, Hernandez filed a claim for supplemental security income benefits (“SSI”), pursuant
to Title XVI of the Social Security Act (“Act”), 42 U.S.C. § 1382c, alleging that she was unable to
work because she had contracted hepatitis C and suffered from severe mental illness. Following
statements from her doctor that she had a history of anxiety, the Disability Determination Service
(“DDS”) requested that Hernandez be evaluated by a licensed psychologist. The licensed
psychologist concluded that Hernandez emotional state appeared average for her age but that she had
some fatigue and memory problems. A state agency psychologist also reviewed Hernandez’s records,
concluding that Hernandez was not significantly limited in her mental abilities.
On May 14, 2004, the administrative law judge (“ALJ”) issued a decision denying
Hernandez’s claim for SSI, holding that she had no severe impairments other than hepatitis C,
borderline intellectual functioning, and carpal tunnel syndrome, and that her anxiety did not interfere
with her ability to meet the demands of basic work activity. Hernandez then filed an application for
administrative review, which was denied by the appeals council.
In December, 2004, Hernandez filed a complaint in district court seeking review of the Social
Security Administration’s (“commission”) decision pursuant to 42 U.S.C. § 405(g). On August 22,
2005, the magistrate judge issued a recommendation that the district court affirm the commission’s
decision. Instead, on September 22, 2005, the district court vacated and remanded the commission’s
decision but held that Hernandez was not entitled to attorney’s fees. Hernandez filed a motion for
a new trial on the issue of attorney’s fees. That motion was denied. Hernandez appeals on the issue
of attorney’s fees to this court under § 205(g) of the Act.

-- 2 of 4 --

3
DISCUSSION
This court reviews a district court’s decision regarding attorney’s fees under the EAJA for
abuse of discretion. Spawn v. Western Bank-Westheimer, 989 F.2d 830, 839 (5th Cir. 1993).
Under the EAJA, a court awards attorney’s fees to any prevailing party—other than the
United States—unless the court finds either that the position of the government was “substantially
justified” or that such an award is unjust. 28 U.S.C. § 2412(d)(1)(A). In this case, the district court
denied Hernandez’s claimfor attorney’s fees, holding that the commission’s position was substantially
justified. In contrast, Hernandez argues that attorney’s fees are proper because the government’s
position was not substantially justified.
The standard for determining whether the government’s position is substantially justified is
whether the position is “justified to a degree that could satisfy a reasonable person.” Pierce v.
Underwood, 487 U.S. 552, 565 (1988).
Hernandez argues that because the ALJ did not apply the six Social Security Administration
(“SSA”) treating physician factors nor accord enough weight to her physician’s diagnosis, the
government’s position was substantially unjustified. There is no requirement that an ALJ apply the
six SSA treating physician factors as long as there is an opinion of another examining physician
providing a basis for a contrary opinion. See Apfel, 209 F.3d at 458. Additionally, this court has held
that considerable weight can be given to the opinions of non-treating physicians, especially when the
treating physician’s evaluation is unsupported by the evidence. Newton v. Apfel, 209 F.2d 448, 456
(5th Cir. 2000). An ALJ can discount the weight of the opinions of treating physicians relative to
the opinions of others if the treating physician’s opinion and diagnosis is unsupported. Leggett v.
Chater, 67 F.3d 558, 566 (5th Cir. 1995).

-- 3 of 4 --

4
There is ample evidence demonstrating that reasonable people could disagree as to whether
Hernandez was eligible for SSI benefits. In assessing mental health claims, it would be reasonable
to accord more weight to the opinion of a licensed mental health professional than a doctor who
lacked comparable experience. The “opinion of a specialist is generally accorded greater weight than
that of a non-specialist.” Apfel, 209 F.3d at 455.
Even if the ALJ had applied the correct standard in reviewing Hernandez’s claims, there is
nothing in the record that suggests that the outcome would have been any different. An ALJ can
accord considerable weight to the opinion of a non-treating physicians. The ultimate determination
that more weight should have been given to the treating physician’s opinion did not transform the
government’s position as to Hernandez’s ineligibility for SSI benefits into one that can be
characterized as substantially unjustified. Thus, the district court did not abuse its discretion by
holding such.
Additionally, Hernandez argues the district court abused its discretion because it should have
waited until she filed a formal application for attorney’s fees before ruling on this issue. However,
there is nothing in the EAJA or our cases to support the proposition that a district court must wait
until a formal application for attorney’s fees under the EAJA is made before ruling.
CONCLUSION
Accordingly, we AFFIRM the district court’s denial of attorney’s fees.
AFFIRMED.

-- 4 of 4 --