United States District Court, D. New Hampshire
J. McAuliffe United States District Judge
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.
reasons set forth below, claimant's motion for an award
of attorney's fees is granted.
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.'”).
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.”).
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.”).
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).
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 ...