UNITED STATES DISTRICT COUR
DISTRICT OF NEW HAMPSHIRE
James Garneau, Claimant Case No. 16-cv-448-SM v. Opinion No. 2018 DNH 056
Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Defendant
O R D E R
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. §
2 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.”).
3 Discussion
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
4 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 “treating source
rule,” but “it would appear that by determining that Garneau
would be absent from work two days a month or fewer, the ALJ may
have run afoul of the rule that generally precludes ALJs from
interpreting raw medical data in functional terms and
5 determining a claimant’s RFC without support from an expert
opinion.” Id. at 23.
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UNITED STATES DISTRICT COUR
DISTRICT OF NEW HAMPSHIRE
James Garneau, Claimant Case No. 16-cv-448-SM v. Opinion No. 2018 DNH 056
Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Defendant
O R D E R
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. §
2 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.”).
3 Discussion
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
4 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 “treating source
rule,” but “it would appear that by determining that Garneau
would be absent from work two days a month or fewer, the ALJ may
have run afoul of the rule that generally precludes ALJs from
interpreting raw medical data in functional terms and
5 determining a claimant’s RFC without support from an expert
opinion.” Id. at 23.
Parenthetically, the court notes that the Acting
Commissioner suggests, with at best ambiguous legal support,
that whether (and, if so, how much) a claimant is likely to be
absent from work each month due to his or her impairment(s) is a
question reserved to the Commissioner under 20 C.F.R. §
416.927(d). So, the argument goes, the ALJ was entirely within
her rights to simply ignore the two opinions from treating
sources about Garneau’s likely absences, without need for any
explanation. The court disagrees. See 20 C.F.R. §
416.927(a)(1) (“Medical opinions are statements from acceptable
medical sources that reflect judgments about the nature and
severity of your impairment(s), including your symptoms,
diagnosis and prognosis, what you can still do despite
impairment(s), and your physical or mental restrictions.”). A
medical expert’s opinion about the number of days a claimant is
likely to miss work due to his or her impairments is akin to an
opinion about the number of hours a claimant can remain seated,
or the amount a claimant can lift, or a claimant’s need for
unscheduled breaks, or a claimant’s need to avoid repetitive
motions - all of which are so-called “functional limitations,”
on which medical experts are entitled to opine. See, e.g.,
6 Lampkin v. Comm’r of Social Security, No. 5:15-CV-0944 (DEP),
2016 WL 4486177, at *3 (N.D.N.Y. Aug. 25, 2016) (“[I]t is not
true that the opinion that [claimant] would be absent from work
four times per month is a matter reserved to the
Commissioner.”); Dote-Lowery v. Colvin, No. 6:14-CV-00570, 2015
WL 5787016, at *4 (N.D.N.Y. Oct. 1, 2015) (“Dr. Mulholland’s
medical source statement does not appear to give a[n] opinion as
to the ultimate issue of Plaintiff’s RFC, but only on the issue
of Plaintiff’s ability to attend to work on a regular basis.
While this information is relevant to the RFC determination, it
is not an opinion on the ultimate issue. Thus, this does not
constitute a meritorious basis to reject Dr. Mulholland’s
medical source statement.”). See also Cox v. Berryhill, No.
4:15-CV-3265-TER, 2017 WL 631819, at *4 (D.S.C. Feb. 16, 2017);
Moliere v. Colvin, No. 6:15-CV-476-ORL-MCR, 2016 WL 5110507, at
*4 (M.D. Fla. Sept. 21, 2016).
Finally, the court notes that in granting Garneau’s motion
to remand, the court observed that the record strongly suggests
that his disc disease qualifies as a listed impairment - a
finding that would resolve his claim at step three of the
sequential analysis. See October Order at 24 (“Garneau’s
medical records appear to document most if not all of the
7 findings necessary to support a determination that Garneau’s
degenerative disc disease qualifies as a listed impairment.”).
The point is this: this was not a particularly close case,
nor did its resolution require novel interpretations of
applicable law. Rather, it involved a clear and straight-
forward error on the part of the ALJ. Such mistakes happen.
But, at least in the context of this case, the nature of that
error precludes the Acting Commissioner from carrying her burden
to demonstrate that her decision to deny Garneau’s application
for benefits, as well as her defense of that decision before
this court, were “substantially justified.”
Conclusion
For the foregoing reasons, as well as those set forth in
claimant’s memoranda, the court concludes that the Acting
Commissioner has not demonstrated that the position of the
government was “substantially justified.” See 28 U.S.C. §
2412(d)(1)(A). And, because she does not object to claimant’s
motion for fees on other grounds, that motion (document no. 14)
is granted. Claimant is awarded reasonable attorney’s fees in
the amount of $6,632.50. See Affidavit of Attorney Ruth Heinz
(document no. 14-2) and Exhibit 1 (document no. 14-2).
8 SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge
March 19, 2018
cc: Ruth D. Heintz, Esq. Robert J. Rabuck, AUSA