dissenting:
I respectfully dissent. In my view, plaintiff should be awarded attorney’s fees.
Not only do I think that Anderson v. Heckler, 756 F.2d 1011 (4 Cir.1985), is directly applicable and controlling,* the legislative history of the reenacted Equal Access to Justice Act, 28 U.S.C. § 2412, reinforces the conclusion that claimant should be awarded her fees. Anderson was decided under the original Act which expired on October 1984, but in reenacting it in its present form the House Report observed:
Agency action found to be arbitrary and capricious or unsupported by substantial evidence is virtually certain not to have been substantially justified under the Act. Only the most extraordinary special circumstances could permit such an *1251action to be found to be substantially justified under the Act.
H.R.Rep. No. 120, 99th Cong., 1st Sess. at 9-10, reprinted in 1985 U.S.Code Cong. & Admin.News 132, 138.
There are in this case no “extraordinary special circumstances” to justify non-imposition of fees. Indeed, the majority does not even purport to identify a single one. Unquestionably, the Secretary in his original submission to the district court, as in Anderson, sought to ignore the established rule in this circuit that a treating physician's opinion as to disability “is entitled to great weight” and “may be disregarded only if there is persuasive contradictory evidence,” Mitchell v. Schweiker, 699 F.2d 185, 187 (4 Cir.1983), even though plaintiff had cited and discussed Mitchell and its progenitors in her opening brief. When forced to confront this line of authority, the Secretary sought to misconstrue and distort one of the cases. He cited Stawls v. Califano, 596 F.2d 1209 (4 Cir.1979) for the proposition that the opinion of an examining physician who is a specialist is entitled to “special consideration” because he is a specialist. In actuality, the treating physicians in Stawls were specialists, but it was because they were treating physicians that their opinions were given great weight, rather than because they were specialists.
Furthermore, the record contains no persuasive evidence contradicting the opinion of the treating physician. Dr. Lee’s opinion, on which the Secretary relied, was a conditional one, and he had examined the claimant only once. The residual functional capacity forms were completed by persons who had neither seen nor examined the claimant, and, moreover, they were contradicted by later evaluations by the treating physician who conducted an actual later examination. Any justification for adopting Dr. Lee’s opinion over that of the treating physician is absent.
I would reverse the judgment of the district court and remand the case for the fixing of a proper fee.
The majority seeks to distinguish Anderson on the ground that there the Secretary clearly litigated in contravention of a fixed legal principle established for this circuit, while here the Secretary ignored a rule that was more flexible. In my view, there is no significant distinction.
In Anderson, the precedent disregarded by the Secretary was Dotson v. Schweiker, 719 F.2d 80 (4 Cir.1983), which created a presumption that a disability, once established, is continuing, and placed on the Secretary the burden of proving that the disability has ceased. The precedents ignored by the Secretary in the case, e.g., Mitchell v. Schweiker, 699 F.2d 185, 187 (4 Cir.1983), similarly create a presumption that a treating physician’s opinion of disability is to be given controlling weight absent persuasive contradictory evidence. Any distinction between the two established presumptions is merely one of degree. Moreover, as I show in the text, the flexibility inherent in the rule about the weight to be given to the opinion of a treating physician is directly dependent upon the existence of persuasive contradictory evidence, and in the instant case, there is no persuasive contradictory evidence.