Leclerc v. SSA CV-93-648-B 07/31/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Kevin LeClerc
v. Civil No. 93-648-B
Shirley S. Chater, Commissioner of the Social Security Administration1
O R D E R
Kevin LeClerc moves for an award of attorneys' fees under
the Equal Access to Justice Act ("EAJA"), 28 U.S.C.A. § 2412(d).
The EAJA provides for fees to a prevailing party in litigation
with the United States "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.A. §
2412(d)(1)(A). The Commissioner opposes LeClerc's motion on the
1 The defendant in this case was originally Donna Shalala, Secretary of Health and Human Services. Pursuant to the Social Security Independence and Program Improvements Act of 1994, effective March 31, 1995, the functions of the Secretary of Health and Human Services in social security cases were transferred to the Commissioner of Social Security. Pub.L . No. 103-296. The Commissioner has been substituted for the Secretary in the title of the case. Fed. R. Civ. P. 25(d), but I will continue to refer to the Secretary when the proceedings predate the change in name. grounds that the government's position was substantially
justified within the meaning of the EAJA. Therefore, the
Commissioner bears the burden of showing that the government's
position both in the ALJ proceeding and here "had a reasonable
basis in law and fact" even though it was ultimately reversed.
Morin v. Secretary of Health and Human Servs., 835 F. Supp. 1431,
1434 (D.N.H. 1993) (guotations omitted).
LeClerc applied for social security benefits in October 1992
claiming an inability to work since October 24, 1988, because of
a back injury. When his application was denied initially and on
reconsideration, he reguested a hearing and notified the
Secretary that he had also contracted Hepatitis B. Prior to the
hearing, the Secretary obtained medical records that included
only three Hepatitis-related references: 1) a December 1990
hospital emergency room note that LeClerc had come in to be
tested for Hepatitis-B after his girl friend received a positive
test result; 2) positive Hepatitis-B test results for blood work
done in December 1990 and January 1991; 3) a doctor's examination
note from the same period that LeClerc "has been tired on and off
for guite some time" and is "definitely infectious."
LeClerc appeared pro se at a hearing before an
Administrative Law Judge ("ALJ") on July 29, 1993. His testimony
2 described his limitations due to his back injury and pain caused
by a ruptured disc. When asked if there were anything else
wrong, he responded that he had a lot of stress and had Hepatitis
B, which made him "very tired all the time." He said that he was
not taking medication for Hepatitis B but that he had been told
to eat a lot of sweets. He explained that he napped during the
day because he was tired but that the naps made it hard to sleep
at night.
The ALJ did not mention LeClerc's Hepatitis B infection or
include a restriction for fatigue in her hypothetical posed to
the vocational expert. She concluded that LeClerc was severely
impaired by his back condition and was unable to return to his
past relevant work, but that his subjective complaints of back
pain were not entirely credible. She determined that he could
perform jobs that existed in the national economy, and as a
result, he was not disabled. LeClerc, then represented by an
attorney, reguested review that was denied by the Appeals
Council.
On appeal to this court, LeClerc argued for a remand on the
grounds that his waiver of representation at the hearing was
ineffective and that he was prejudiced by a lack of
representation by counsel. He argued that the ALJ should have
3 obtained more recent medical records concerning his Hepatitis-B
infection. The Secretary moved to affirm the decision denying
benefits. Because LeClerc did not show what additional evidence
the ALJ could have obtained, I granted him an opportunity to
produce new medical evidence to meet the standard necessary for a
remand under 42 U.S.C.A. § 405(g). When some new medical
records were offered, I concluded that the more recent medical
records concerning LeClerc's Hepatitis-B infection met the
newness and materiality reguirements and were not previously
submitted for good cause given LeClerc's pro se status. Most of
the records post-dated the ALJ hearing. Thus, LeClerc's claim
was remanded, without a decision on the merits of the Secretary's
decision, pursuant to "sentence six" of 42 U.S.C.A. § 405(g).2
On remand, the ALJ considered additional new medical records
pertaining to LeClerc's Hepatitis-B infection which reflected
examinations and treatment he underwent after the Secretary's
decision denying benefits. Based on the new evidence, the ALJ
found that LeClerc suffered from chronic Hepatitis-B infection
2 The Appeals Council mistakenly characterized the remand in this case as a "sentence four" remand. As the case was remanded for consideration of new and material evidence without a decision on the merits of the Secretary's decision, it was a "sentence six" remand.
4 with chronic liver infection causing abdominal pain in addition
to his back condition which caused chronic back pain. As a
result, the ALJ fully credited LeClerc's descriptions of his pain
and further limited LeClerc's residual functional capacity for
sedentary work with a nonexertional requirement to allow him to
stop working during unpredictable attacks of liver pain for up to
one-half hour. Due to his nonexertional limitation caused by his
Hepatitis-B infection, the vocational expert testified that
LeClerc could not be expected to adjust to work as it exists in
the national economy, and the ALJ concluded that LeClerc was
disabled from all work.
To meet the exception provided in the EAJA, the Secretary
must show that her position was "justified to a degree that could
satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552,
565 (1988). The mere fact that the Secretary later reversed her
first decision does not mean that either the first decision or
the government's motion to affirm the decision was unjustified.
Morin, 835 F. Supp. at 1434. In this case, as is common in
"sentence six" remands, LeClerc was given an opportunity to
present new medical evidence of his impairment that was largely
unavailable when the Secretary's first determination was made.
See Shalala v. Schaefer, 509 U.S. 292, 310 (1993) (Stevens, J.,
5 concurring); see also Parsons v. Sullivan, 140 F.R.D. 352, 359
(S.D. Ohio 1992). The Secretary's initial decision to deny
benefits was reasonable based on the limited information
presented concerning LeClerc's Hepatitis-B infection.3 The ALJ's
subseguent conclusion that LeClerc was disabled, which resulted
in the final decision to award benefits, was based on new
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Leclerc v. SSA CV-93-648-B 07/31/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Kevin LeClerc
v. Civil No. 93-648-B
Shirley S. Chater, Commissioner of the Social Security Administration1
O R D E R
Kevin LeClerc moves for an award of attorneys' fees under
the Equal Access to Justice Act ("EAJA"), 28 U.S.C.A. § 2412(d).
The EAJA provides for fees to a prevailing party in litigation
with the United States "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.A. §
2412(d)(1)(A). The Commissioner opposes LeClerc's motion on the
1 The defendant in this case was originally Donna Shalala, Secretary of Health and Human Services. Pursuant to the Social Security Independence and Program Improvements Act of 1994, effective March 31, 1995, the functions of the Secretary of Health and Human Services in social security cases were transferred to the Commissioner of Social Security. Pub.L . No. 103-296. The Commissioner has been substituted for the Secretary in the title of the case. Fed. R. Civ. P. 25(d), but I will continue to refer to the Secretary when the proceedings predate the change in name. grounds that the government's position was substantially
justified within the meaning of the EAJA. Therefore, the
Commissioner bears the burden of showing that the government's
position both in the ALJ proceeding and here "had a reasonable
basis in law and fact" even though it was ultimately reversed.
Morin v. Secretary of Health and Human Servs., 835 F. Supp. 1431,
1434 (D.N.H. 1993) (guotations omitted).
LeClerc applied for social security benefits in October 1992
claiming an inability to work since October 24, 1988, because of
a back injury. When his application was denied initially and on
reconsideration, he reguested a hearing and notified the
Secretary that he had also contracted Hepatitis B. Prior to the
hearing, the Secretary obtained medical records that included
only three Hepatitis-related references: 1) a December 1990
hospital emergency room note that LeClerc had come in to be
tested for Hepatitis-B after his girl friend received a positive
test result; 2) positive Hepatitis-B test results for blood work
done in December 1990 and January 1991; 3) a doctor's examination
note from the same period that LeClerc "has been tired on and off
for guite some time" and is "definitely infectious."
LeClerc appeared pro se at a hearing before an
Administrative Law Judge ("ALJ") on July 29, 1993. His testimony
2 described his limitations due to his back injury and pain caused
by a ruptured disc. When asked if there were anything else
wrong, he responded that he had a lot of stress and had Hepatitis
B, which made him "very tired all the time." He said that he was
not taking medication for Hepatitis B but that he had been told
to eat a lot of sweets. He explained that he napped during the
day because he was tired but that the naps made it hard to sleep
at night.
The ALJ did not mention LeClerc's Hepatitis B infection or
include a restriction for fatigue in her hypothetical posed to
the vocational expert. She concluded that LeClerc was severely
impaired by his back condition and was unable to return to his
past relevant work, but that his subjective complaints of back
pain were not entirely credible. She determined that he could
perform jobs that existed in the national economy, and as a
result, he was not disabled. LeClerc, then represented by an
attorney, reguested review that was denied by the Appeals
Council.
On appeal to this court, LeClerc argued for a remand on the
grounds that his waiver of representation at the hearing was
ineffective and that he was prejudiced by a lack of
representation by counsel. He argued that the ALJ should have
3 obtained more recent medical records concerning his Hepatitis-B
infection. The Secretary moved to affirm the decision denying
benefits. Because LeClerc did not show what additional evidence
the ALJ could have obtained, I granted him an opportunity to
produce new medical evidence to meet the standard necessary for a
remand under 42 U.S.C.A. § 405(g). When some new medical
records were offered, I concluded that the more recent medical
records concerning LeClerc's Hepatitis-B infection met the
newness and materiality reguirements and were not previously
submitted for good cause given LeClerc's pro se status. Most of
the records post-dated the ALJ hearing. Thus, LeClerc's claim
was remanded, without a decision on the merits of the Secretary's
decision, pursuant to "sentence six" of 42 U.S.C.A. § 405(g).2
On remand, the ALJ considered additional new medical records
pertaining to LeClerc's Hepatitis-B infection which reflected
examinations and treatment he underwent after the Secretary's
decision denying benefits. Based on the new evidence, the ALJ
found that LeClerc suffered from chronic Hepatitis-B infection
2 The Appeals Council mistakenly characterized the remand in this case as a "sentence four" remand. As the case was remanded for consideration of new and material evidence without a decision on the merits of the Secretary's decision, it was a "sentence six" remand.
4 with chronic liver infection causing abdominal pain in addition
to his back condition which caused chronic back pain. As a
result, the ALJ fully credited LeClerc's descriptions of his pain
and further limited LeClerc's residual functional capacity for
sedentary work with a nonexertional requirement to allow him to
stop working during unpredictable attacks of liver pain for up to
one-half hour. Due to his nonexertional limitation caused by his
Hepatitis-B infection, the vocational expert testified that
LeClerc could not be expected to adjust to work as it exists in
the national economy, and the ALJ concluded that LeClerc was
disabled from all work.
To meet the exception provided in the EAJA, the Secretary
must show that her position was "justified to a degree that could
satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552,
565 (1988). The mere fact that the Secretary later reversed her
first decision does not mean that either the first decision or
the government's motion to affirm the decision was unjustified.
Morin, 835 F. Supp. at 1434. In this case, as is common in
"sentence six" remands, LeClerc was given an opportunity to
present new medical evidence of his impairment that was largely
unavailable when the Secretary's first determination was made.
See Shalala v. Schaefer, 509 U.S. 292, 310 (1993) (Stevens, J.,
5 concurring); see also Parsons v. Sullivan, 140 F.R.D. 352, 359
(S.D. Ohio 1992). The Secretary's initial decision to deny
benefits was reasonable based on the limited information
presented concerning LeClerc's Hepatitis-B infection.3 The ALJ's
subseguent conclusion that LeClerc was disabled, which resulted
in the final decision to award benefits, was based on new
evidence and was not a correction of a previous factual mistake
or of an error of law.
Under these circumstances, the Secretary's position through
both the administrative and litigation levels of this case was
substantially justified within the meaning of the exception to
the EAJA. As a result, LeClerc is not entitled to fees as
provided in the EAJA.
3 Although I later determined that LeClerc should be given an opportunity to supply medical records to fill a "gap" in the record, see Order at *4, September 14, 1994, citing Heggartv v. Sullivan, 947 F.2d 990, 997 (1st Cir. 1991), my conclusion was based on additional records LeClerc submitted here. In his motion for fees, LeClerc mentions that the government had "favorable medical evidence" in their file that was submitted to the Appeals Council. Because LeClerc has not identified the "favorable evidence" and it is not apparent in the record, I cannot evaluate the reasonableness of the government's position based merely on his allegation.
6 CONCLUSION
For the foregoing reasons, LeClerc's motion for fees under
the EAJA (document 26) is denied.
SO ORDERED.
Paul Barbadoro United States District Judge
July 31, 1996
cc: Raymond J. Kelly, Esg. David Broderick, Esg.