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Garneau v. Berryhill

United States District Court, D. New Hampshire

March 19, 2018

James Garneau, Claimant
Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Defendant


          Steven J. McAuliffe United States District Judge

         By order dated October 10, 2017, the court vacated the Acting Commissioner's decision denying James Garneau's application for Social Security Disability Benefits, and remanded the case for further proceedings (document no. 12) (the “October Order”). Mr. Garneau now moves for an award of attorney's fees under the Equal Access to Justice Act (the “EAJA”). See 28 U.S.C. § 2412(d)(1)(A). The Acting Commissioner opposes Garneau's motion for fees on grounds that the government's agency action and it's litigation position before this court were both “substantially justified, ” within the meaning of the EAJA.

         For the reasons set forth below, claimant's motion for an award of attorney's fees is granted.

         Standard of Review

         The Equal Access to Justice Act (“EAJA”) provides, in pertinent part, that:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . . including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A) (emphasis supplied). So, to recover fees under the EAJA, a party must not only prevail, but the court must also conclude that the government's position was not substantially justified. See McDonald v. Secretary of Health & Human Services, 884 F.2d 1468, 1469-70 (1st Cir.1989) (“Under EAJA, . . . the government must foot the legal bills of its adversaries in civil cases (other than tort actions), but only if the adversaries ‘prevail' and if the government's position is not ‘substantially justified.'”).

         Under the EAJA, the “government's position” in this case includes not only the Acting Commissioner's arguments before this court, but also the conduct of both the administrative law judge in denying Garneau's application for benefits and the Appeals Council's decision to decline review. See 28 U.S.C. § 2412(d)(2)(D) (“‘position of the United States' means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based.”).

         In opposing a party's request for fees under the EAJA, the government bears the burden of demonstrating that its position was substantially justified. See Scarborough v. Principi, 541 U.S. 401, 414 (2004). The Supreme Court has explained that the government carries its burden by showing its position had “a reasonable basis in law and fact” and was justified “to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 and 566 n.2 (1988). In other words, the government's position will be considered “substantially justified” if “reasonable people could differ as to the appropriateness of the contested action.” Id. at 565 (citation and internal punctuation omitted). It may also be considered substantially justified when the issue presented was close or involved novel questions of law. See, e.g., Schock v. United States, 254 F.3d 1, 6 (1st Cir. 2001) (“When the issue is a novel one on which there is little precedent, courts have been reluctant to find the government's position was not substantially justified.”).


         This case did not implicate any novel (or even debatable) questions of law. Rather, it involved application of the well-established “treating source rule.” See 20 C.F.R. § 404.1527(c)(2). This court (DiClerico, J.) recently described that rule as follows:

An ALJ is required to consider the medical opinions along with all other relevant evidence in a claimant's record. 20 C.F.R. § 404.1527(b). Medical opinions from all sources are evaluated based on the nature of the medical source's relationship with the claimant, the consistency of the opinion with the other record evidence, the medical source's specialty, and other factors that may be brought to the ALJ's attention. § 404.1527(c). “[U]nder the treating source rule, controlling weight will be given to a treating physician's opinion on the nature and severity of a claimant's impairments if the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record.”

Squeglia v. Berryhill, No. 16-CV-238-JD, 2017 DNH 36, 2017 WL 773528 at *4, (D.N.H. Feb. 28, 2017) (DiClerico, J.) (quoting Arrington v. Colvin, 216 F.Supp.3d 217, 239 (D. Mass. 2016), aff'd sub nom. Arrington v. Berryhill, No. 17-1047, 2018 WL 818044 (1st Cir. Feb. 5, 2018)) (emphasis supplied).

         Here, the court held that the ALJ failed to properly apply the “treating source rule” by neglecting to give good reasons for discounting Dr. Rock's opinion that Garneau would likely be absent from work three or more times each month as a result of his impairments - an opinion that was shared by Nurse Dustin. See October Order at 23 (“Dr. Rock's opinion and Nurse Dustin's opinion are not just consistent; they are identical.”). See generally Brunel v. Commissioner,248 F.3d 1126, 2000 WL 1815946 at *2 (1st Cir. 2000) (“The ALJ's error was particularly egregious because he cited the claimant's treating doctor's RFC evaluation in support of his own RFC findings, while ignoring, without any explanation, that part of the doctor's evaluation which indicated that claimant's capacity for sedentary work was significantly compromised. The ALJ thus plainly violated the Commissioner's own regulations and rulings.”). Indeed, the opinions of Dr. Rock and Nurse Dustin were the only opinions in the entire medical record that addressed Garneau's likely absences from work. And, critically, both of those opinions were supported by objective medical signs. See October Order at 21-23. Given that those opinions were well-supported, and in light of the absence of contrary evidence, the court noted that not only had the ALJ failed to comply with the ...

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