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).
2 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.
3 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.
4 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
5 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,
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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).
2 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.
3 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.
4 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
5 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.”
6 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.
It appears, reading the documents together, that Lagasse’s
counsel is showing that she and her paralegal worked a total of
84.30 hours on the case. At the reduced hourly rate for
purposes of a fee award under the EAJA, counsel would charge a
total of $15,276.20 for that time. Counsel decided to discount
the fee request to $9,000.00. Using a reverse calculation based
on the $9,000.00 amount and $196.00 as the hourly rate, counsel
is requesting fees for about 45.9 hours of work.
The Acting Commissioner argues that the amount of fees
requested by Lagasse is excessive because this was a routine
case with only one issue. The Acting Commissioner argues that
such routine cases should require between twenty and forty hours
of attorney time. Lagasse contends that her fee request is
Other courts in the First Circuit have found fees for more
than forty hours of work were reasonable in cases without a
string of issues. See Diggett, 292 F. Supp. 3d at 584 (finding
106.9 hours reasonable where case was remanded on a single issue
and rejecting as arbitrary Acting Commissioner’s proposal to
limit the request to 40 hours). While the court agrees with the
7 Acting Commissioner that Lagasse’s counsel’s work on the joint
factual statement resulted in an excessively long document,
counsel also significantly reduced the total amount of fees
requested, which accounts for the excess time.3 Overall, the
court finds that the fees requested are reasonable.
Lagasse’s attorney asks that the fees be paid directly to
her, rather than to Lagasse, pursuant to the terms of their
assignment agreement. In that agreement, Lagasse assigned her
“right to receive the EAJA award to [her] attorney, Janine
Gawryl, to cover the legal work she and her paralegals did on
[her] behalf in Federal Court.” Doc. 21-3. The Acting
Commissioner does not oppose the assignment or payment to
Lagasse’s attorney. Cf. Kerr for Kerr v. Comm’r of Social
Security, 874 F.3d 926, 934-38 (6th Cir. 2017); Heims v.
Berryhill, 2018 WL 2390589, at *2 (N.D. Iowa, May 25, 2018);
Skvorak v. Berryhill, 264 F. Supp. 3d 12, 14-15 (D.D.C. 2017).
Because EAJA fees are payable to the litigant, rather than
counsel, they are subject to offset to satisfy any preexisting
debt owed by Lagasse to the United States. Astrue v. Ratliff,
130 S. Ct. 2421 (2010). If Lagasse has no debt owed to the
3 The Local Rules in this district have been amended to eliminate the joint factual statement and instead require the parties to provide factual statements that meet certain conditions, with page limitations. LR 9.1. Therefore, a 59 page factual statement will no longer be allowed.
8 United States that is subject to offset, the fee award is
payable to her attorney. See Zayas v. Colvin, 2016 WL 5109127,
at *1 (D. Mass. Sept. 19, 2016).
Conclusion
For the foregoing reasons, the claimant’s motion for an
award of fees (document no. 21) is granted. Lagasse is awarded
$9,000.00 in attorney’s fees.
The Acting Commissioner shall pay the fee award to
Lagasse’s attorney, Janine Gawryl, less the amount of any
preexisting debt that Lagasse owes which is subject to offset.
SO ORDERED.
__________________________ Joseph A. DiClerico, Jr. United States District Judge
June 14, 2018
cc: Janine Gawryl, Esq. Robert J. Rabuck, Esq.