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Lagasse v. Berryhill

United States District Court, D. New Hampshire

June 14, 2018

Jillian Virginia Lagasse
v.
Nancy Berryhill, Acting Commissioner, Social Security Administration

          Janine Gawryl, Esq., Robert J. Rabuck, Esq.

          ORDER

          Joseph A. DiClerico Jr. United States District Judge

         Jillian Lagasse sought judicial review, pursuant to 42 U.S.C. § 405(g), of the decision of the Acting Commissioner of Social Security, that granted benefits for only a closed period of disability. The court reversed the Acting Commissioner's decision and remanded the case for further proceedings. Lagasse now moves for an award of attorney's fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. The Acting Commissioner objects on the grounds that the government's position was substantially justified and that the amount of fees requested is unreasonable.

         Standard of Review

         Under the EAJA, a prevailing party in a social security case is entitled to an award of attorney's fees and other expenses unless the Acting Commissioner's position was substantially justified or “special circumstances make an award unjust.” § 2412(d)(1)(A). For purposes of the EAJA, the Acting Commissioner's position “includes not only [her] arguments before this court, but also the conduct of both the administrative law judge in denying [the claimant's] application for benefits and the Appeals Council's decision to decline review.” Garneau v. Berryhill, 2018 WL 1401793, at *1 (D.N.H. Mar. 19, 2018) (citing § 2412(d)(2)(D)); see also Diggett v. Berryhill, 292 F.Supp.3d 581, 583 (D.R.I. 2017) (citing McDonald v. Sec'y of HHS, 884 F.2d 1468, 1476 (1st Cir. 1989)). To successfully oppose a motion under the EAJA, the Acting Commissioner bears the burden of showing that her position was “‘justified to a degree that could satisfy a reasonable person' - that is, [that] the position ha[d] 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)). If an award of fees is appropriate, the claimant bears the burden of showing that the amount of fees requested is reasonable. Manniello v. Berryhill, 2018 WL 881757, at *1 (D. Me. Feb. 14, 2018).

         Discussion

         Lagasse seeks $9, 000.00 in attorney's fees under the EAJA.[1]The Acting Commissioner objects, contending that her litigation position was substantially justified. She also argues, in the alternative, that the amount of fees requested is not reasonable.

         A. Justification

         The Acting Commissioner contends that Lagasse is not entitled to fees under the EAJA because her litigation position was substantially justified. She argues again, as she did in support of her motion to affirm, that the ALJ could draw common sense conclusions from medical records to find that Lagasse had improved as of December 9, 2015, so that she was no longer disabled. Because an ALJ may draw such conclusions in appropriate circumstances, she contends her position here was substantially justified.[2] The Acting Commissioner also contends that the ALJ noted Lagasse's drug-seeking behavior, which could provide an explanation for her many hospital and provider visits after the date the ALJ found she was not longer disabled.

         As is thoroughly explained in the order, the ALJ's finding of a closed period of disability was based on a functional capacity assessment that Lagasse would be absent from work three or four times each month due to her impairments. The medical records the ALJ interpreted to show improvement did not address Lagasse's functional capacity, or, more importantly, her likely absenteeism. The records at most showed some normal physical results on examination but did not mention functional capacity or a need to be absent from work. Further, the No. of hospital and provider visits in the period when the ALJ found improvement, along with the seriousness of Lagasse's underlying impairments, weigh heavily against a finding that she would no longer experience absenteeism.

         The Acting Commissioner also argues that she “relied on the ALJ's observation that the medical record showed serious and ongoing drug-seeking.” She contends that the medical record supports a finding that Lagasse sought treatment to obtain drugs rather than for medical needs. The ALJ, however, did not make that finding.

         In finding a closed period of disability, the ALJ reviewed Lagasse's substance abuse and found that she was disabled during that period “with or without substance abuse.” The ALJ further stated that while he acknowledged substance abuse, he found “insufficient support for a finding that it is material to the finding of disability.” With respect to Lagasse's functional capacity after December 9, 2015, the ALJ found that her substance abuse was “non-severe” although she did engage in “some ongoing drug-seeking behavior.” The ALJ did not ascribe the extensive treatment sought after December 9, 2015, to drug seeking, and instead concluded that there was “insufficient support for a finding that the claimant's substance abuse and drug-seeking behavior is an issue material to the finding of disability.” Admin. Rec. at 32.

         The Acting Commissioner has not shown that the ALJ's decision in this case, the Appeals Council's denial of Lagasse's request for review, and her own position for purposes of judicial review were substantially ...


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