Fisher v. SSA

2017 DNH 020

• Court: District Court, D. New Hampshire
• Decided: January 30, 2017
• Docket: 16-cv-176-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mark Fisher

v. Civil No. 16-cv-176-JD Opinion No. 2017 DNH 020 Carolyn Colvin, Acting Commissioner, Social Security Administration

O R D E R

After 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 justification.

Standard of Review

Attorneys 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).

Discussion

In this 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.

For 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).

Fisher challenged the ALJ’s finding at Step Three, the

ALJ’s analysis of the opinions of Fisher’s treating physician,

2 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.

In his 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).

The 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

3 days apart, and the records did not include evaluations of his

altered mental state.

The 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.

The 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

4 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).

The 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.”

In 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

5 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. Comm’r of

Social Security, 211 F.3d 652, 656 (1st Cir. 2000). Here,

however, the Acting Commissioner’s reasoning raised new

questions that could not be resolved on the record.

The parties agree that the issues raised by the Acting

Commissioner’s analysis were novel. In addition, Fisher applied

the wrong standard in his motion for reversing and remanding the

case. Considering all of the circumstances, the Acting

Commissioner has carried her burden of showing substantial

justification for her position in this case.

Conclusion

For the foregoing reasons, the claimant’s motion for

attorneys’ fees (document no. 14) is denied.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge January 30, 2017

cc: Robert J. Rabuck, Esq. Sheila O’Leary Zakre, Esq.