United States District Court, D. New Hampshire
DICLERICO, JR. UNITED STATES DISTRICT JUDGE.
the court reversed and remanded the decision of the Acting
Commissioner denying benefits to Mark Fisher, he moved for an
award of attorneys’ fees pursuant to the Equal Access
to Justice Act (“EAJA”). The Acting Commissioner
objects to the motion on the grounds that her position was
substantially justified. Fisher replies, challenging the
Acting Commissioner’s grounds for substantial
who represent successful claimants for social security
benefits may be awarded fees under the EAJA. 28 U.S.C. §
2414(d)(1)(A). In support of a motion for attorneys’
fees, a claimant must allege facts to show that the position
of the Acting Commissioner was not substantially justified.
§ 2412(d)(1)(B). The Acting Commissioner, however, bears
the burden of showing that her position was substantially
justified. McDonald v. Sec’y of Health & Human
Servs., 884 F.2d 1468, 1475 (1st Cir. 1989). The court
may reduce or deny an award of fees if the circumstances
would make the award unjust. § 2412(d)(1)(C).
case, the ALJ found that Fisher was not disabled for purposes
of his application for supplemental security income. At Step
Three, the ALJ found that Fisher’s impairment or
impairments did not meet or equal the requirements of the
listed impairment at § 5.05 of 20 C.F.R. Part 404,
Subpart P, Appendix 1. The ALJ continued on through the
five-step sequential analysis to conclude that jobs existed
which Fisher could do.
purposes of judicial review, Fisher argued generally that
substantial evidence supported his claim for benefits, making
the ALJ’s findings erroneous. The court explained that
Fisher, who is represented by counsel, misunderstood the
standard of review. Instead, the court must affirm the Acting
Commissioner’s decision as long as substantial evidence
in the record supports the ALJ’s findings. Nguyen
v. Chater, 172 F.3d 1, 35 (1st Cir. 1999).
challenged the ALJ’s finding at Step Three, the
ALJ’s analysis of the opinions of Fisher’s
treating physician, and the assessment of his residual
functional capacity. The court considered the issue of the
ALJ’s Step Three finding, which was dispositive, so
that the remaining issues were not addressed.
decision, the ALJ made only a cursory finding that Fisher did
not meet the criteria of § 5.05 without considering any
of the specific parts or criteria of that listing. For
judicial review, Fisher contended that he met the criteria
for § 5.05(F), which requires satisfying §
5.05(F)(1) and § 5.05(F)(2) or (3). The Acting
Commissioner agreed that Fisher had chronic liver disease
with hepatic encephalopathy and that he satisfied the
criteria of § 5.05(F)(3).
Acting Commissioner argued, however, that Fisher did not meet
the criteria of § 5.05(F)(1), the other necessary
requirement for § 5.05(F), which requires
“abnormal behavior, cognitive dysfunction, changes in
mental status, or altered state of consciousness (for
example, confusion, delirium, stupor, or coma), present on at
least two evaluations at least 60 days apart within a
consecutive 6–month period.” Fisher argued that
he did meet § 5.05(F)(3) because he had been
hospitalized three times when he was experiencing an altered
mental state. The Acting Commissioner then argued that
Fisher’s hospitalizations did not meet the criteria
because one occurred before his application was filed, the
other two were not sixty days apart, and the records did not
include evaluations of his altered mental state.
court noted that the ALJ had not considered any of the issues
that had been raised with respect to § 5.05(F). As a
result, the ALJ’s decision did not show whether he
considered the first hospitalization or whether the relevant
period for purposes of § 5.05(F) included treatment
before the application date. The court noted the importance
of the issue and decided that “it is appropriate to
allow the Social Security Administration to develop the
record at the administrative level before the issue is
reviewed here.” The court also noted that the ALJ did
not explain that his Step Three finding was based on the lack
of an abnormal evaluation so that the issue raised by the
Acting Commissioner had not been considered at the
administrative level. The court decided that the criteria of
§ 5.05(F)(1) should be addressed in administrative
proceedings. The court reversed and remanded the decision for
further administrative proceedings.
Acting Commissioner argues that her position in supporting
the ALJ’s finding was substantially justified. The
Acting Commissioner’s position is substantially
justified “if it is ‘justified to a degree that
could satisfy a reasonable person’-that is, if the
position has a ‘reasonable basis both in law and
fact.’” McLaughlin v. Hagel, 767 F.3d
113, 117 (1st Cir. 2014) (quoting Pierce v.
Underwood, 487 U.S. 552, 565 (1988)). The Acting
Commissioner’s position may be substantially justified
when the issue is close or novel. See Schock v. United
States, 254 F.3d 1, 6 (1st Cir. 2001); Knudsen v.
Colvin, 2015 WL 4628784, at *2 (D. Me. July 31, 2015)
(finding no substantial justification where issue was not
novel); Dexter v. Astrue, 2012 WL 3637920, at *1-*2
(D. Me. 2012) (noting that issue was novel without binding
precedent and finding substantial justification).
Acting Commissioner argues that the court remanded the case
based on an issue that was out of the ordinary. She asserts
that she “could not have anticipated that the ALJ would
have been called upon to define the word
‘evaluations’.” She contends that the court
should have defined evaluations without remanding the case.
She further asserts that she properly assumed that “the
emphasis would be on the evidence, not on the ALJ’s
shortfall in articulating his analysis.”
reviewing administrative proceedings, including social
security proceedings, the court generally does not affirm an
ALJ’s decision based on grounds other than those relied
on by the ALJ. Letellier v. Comm’r of Social
Security Admin., 2014 WL 936437, at *7-*8 (D.N.H. Mar.
11, 2014). In this case, the Acting Commissioner attempted to
fill in the gaps in the ALJ’s decision by providing
reasons and pointing to evidence to support the Step Three
finding. If the Acting Commissioner’s reasoning and
evidence had demonstrated that the ALJ would necessarily have
reached the same conclusion at Step Three, then the decision
might have been affirmed. See Ward v. ...