Jillian Virginia Lagasse v. Nancy Berryhill, Acting Commissioner, Social Security Administration
Opinion
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Jillian Virginia Lagasse
v. Civil No. 17-cv-212-JD Opinion No. 2018 DNH 121
Nancy Berryhill, Acting Commissioner, Social Security Administration
O R D E R
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
1 Lagasse filed a reply in which she asked for an additional $488.00 in fees incurred in generating the reply. Because the reply was filed in violation of LR 7.1(e)(2), however, it was struck. Doc. no. 24. Lagasse did not move for leave to file the reply.
2 The Acting Commissioner argues that her position was substantially justified because the remand was based on a single flaw in the ALJ’s decision. That reasoning is not persuasive because it would make nearly all of the Acting Commissioner’s positions in cases that are reversed and remanded substantially justified.
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 number 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 justified. Therefore, an award of fees under the EAJA is appropriate.
B. Fees Lagasse asks for an award of $9,000.00 in fees. The Acting Commissioner objects, arguing that the fees are excessive
because counsel spent unreasonable amounts of time on certain aspects of the case.
Lagasse’s counsel provided an affidavit in support of the fee request. She states that the hourly rates charged are $196.00 for attorney time and $81.00 for paralegal time, which are lower rates than their usual and customary rates. She also states that she substantially reduced the amount. Counsel refers to Exhibit A as the statement of itemized time.
As the Acting Commissioner points out, the supporting documentation for the fee request is confusing. At the top of the first page of Exhibit A, which is an invoice dated May 9, 2018, there is a handwritten note: “EAJA RATES USED: JG=$196/hr DO=$81/hr.” The total of time for professional services listed on three pages is 84.30 hours, which yields a “balance due” of $15,648.80. Some of the time entries, however, have been crossed out. Below that amount, there is a handwritten note “less 4.6 hrs @ 81-- $372.60” then a line drawn and $15,276.20 entered below the line. Following that, there is a handwritten note: “EAJA REQUESTED: $9,000.00 (Reduced).”
Exhibit A then continues with what appears to be a second copy of the same invoice that has a handwritten note at the top which lists the “usual and customary rates” for Lagasse’s counsel at “$275/hr” and the rate for the paralegal at “$90/hr.”
That copy of the invoice does not show any time entries as crossed out. The total time recorded is 84.30 and the balance due is $21,776.50.
Free access — add to your briefcase to read the full text and ask questions with AI
2018 DNH 121 (Jillian Virginia Lagasse v. Nancy Berryhill, Acting Commissioner, Social Security Administration) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.