LaBrecque v. SSA

2011 DNH 131

• Court: District Court, D. New Hampshire
• Decided: August 24, 2011
• Docket: 10-CV-180-SM
• Status: Published

Opinion

LaBrecque v . SSA 10-CV-180-SM 08/24/11 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

David A . LaBrecque, Plaintiff

v. Case N o . 10-cv-180-SM Opinion N o . 2011 DNH 131 Michael J. Astrue, Commissioner, Social Security Administration, Defendant

O R D E R

Before the court is the motion of Claimant, David LaBrecque,

for an award of $17,000 in attorney’s fees and costs. Doc. n o .

13. See Equal Access to Justice Act (“EAJA”), 28 U.S.C. §

2412(d)(1)(A). The petition is limited to recovery of fees and

costs incurred during the course of claimant’s appeal (to this

court) of an adverse decision by the Commissioner of Social

Security, and for work performed in support of this fee request.

The Commissioner opposes the fee request on grounds that

defending the ALJ’s decision was substantially justified, or

alternatively, that the requested fees are excessive.

Background

In the administrative proceedings before the Commissioner,

the ALJ found that claimant was neither physically nor mentally

disabled. That decision became the final decision of the

Commissioner. On appeal, this court affirmed the ALJ’s physical RFC determination, but reversed and remanded on the issue of

claimant’s mental capacity. Order, doc. n o . 1 1 . The court found

that one of several reasons the ALJ relied on in discounting the

medical opinion of an examining psychiatrist, Dr. Batt, was

factually incorrect. The ALJ believed that Dr. Batt had seen

claimant only once, but the uncontroverted evidence showed that

he had seen claimant three times. Although the ALJ had given

several other reasons for not accepting Dr. Batt’s opinion, this

court remanded for reconsideration, stating:

It is not the province of this court—but of the ALJ—to weigh this (corrected) fact against all other relevant facts. While ordinarily a factual error of this kind probably would not warrant remand, the conflict in qualified medical opinions makes the dispositive issue somewhat close, and it is the ALJ, not this court, that is better suited to resolve that conflict in the first instance.

Order, doc. n o . 1 1 , pg. 1 7 .

In defending the ALJ’s decision before this court, the

Commissioner argued that substantial evidence supported the ALJ’s

decision to discount Dr. Batt’s opinion. The Commissioner

pointed to evidence underlying all of the reasons offered by the

ALJ for his credibility determination.

2 Discussion

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.” Rex, ex rel. A.R. v .

Astrue, Case N o . 07-cv-48-SM, 2009 WL 903737, at *1 (D.N.H. March

3 1 , 2009) (citing McDonald v . Secretary of Health & Human

Services, 884 F.2d 1468, 1469-70 (1st Cir. 1989). The

“‘government’s position’” includes “not only the Commissioner’s

arguments before this court, but also the conduct of both the

administrative law judge . . . in denying the claimant’s

application for benefits and the Appeal Council [...] . . . [in]

declin[ing] review.” Id. The fact that the Commissioner lost on

appeal “does not create a presumption that its position was not

substantially justified.” United States v . Yoffe, 775 F.2d 447,

450 (1st Cir. 1985). Instead, the Commissioner’s defense of his

determination is substantially justified as long as there was

some reasonable basis in law and fact for the determination. Id.

Here, the Commissioner’s position on the issue of claimant’s

physical capacity was found to be correct. It was, therefore,

substantially justified — as claimant appears to concede. The

real issue in dispute, then, is whether the Commissioner’s

position on the issue of claimant’s mental capacity was

substantially justified. The court finds that it was.

3 As noted, the ALJ gave several reasons for discounting Dr.

Batt’s opinion. The remand, to consider a corrected fact of only

potential significance, did not render the ALJ’s decision, or the

position of the Commissioner in defending i t , unreasonable. The

remand order was narrow and cautious, and left as “an open

question” the issue “[w]hether the ALJ’s assessment of Dr. Batt’s

opinion would be different had he known that Dr. Batt saw

claimant on three occasions.” Order, doc. n o . 1 1 , pg. 1 5 . In

other words, it may be that the ALJ on remand will re-weigh the

facts and retain the same view of Dr. Batt’s opinion. In seeking

this court’s affirmance of the ALJ’s original decision, the

Commissioner essentially argued as much, contending that the

facts, taken as a whole, supported the ALJ’s credibility

determination. That argument did not stand or fall on the

corrected fact, and it was reasonable both legally and factually.

See Yoffe, 775 U.S. at 450 (Commissioner’s position is

“substantially justified” where the government has “facts [to]

support its theory.”).

Finally, the court will not fault the government for

pursuing affirmance and resisting remand when the court

acknowledged that it would not normally remand for the type of

factual error made (Order, doc. n o . 1 1 , pg. 1 7 ) , and when “the

dispositive issue [is] somewhat close.” Id.

4 Conclusion

For the reasons stated, the claimant’s motion for attorney’s

fees and costs (doc. n o . 13) is denied.

SO ORDERED.

____________ McAuliffe "hief Judge

August 2 4 , 2011

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