Skidds v. SSA
This text of Skidds v. SSA (Skidds v. SSA) is published on Counsel Stack Legal Research, covering District Court, D. New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Skidds v . SSA 05-CV-383-SM 04/15/08 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Gina M . Skidds, Plaintiff
v. Civil N o . 05-cv-383-SM Opinion N o . 2008 DNH 079 Michael J. Astrue, Commissioner, Social Security Administration, Defendant
O R D E R
By prior order, the court reversed an adverse administrative
decision by the Social Security Administration and remanded the
case for further proceedings, following which a decision
favorable to plaintiff was issued. See Skidds v . Barnhart, 2006
DNH 060 (D.N.H. May 2 4 , 2006) (document n o . 1 0 ) . Plaintiff, Gina
Skidds, now moves for an award of attorney’s fees and costs under
the Equal Access to Justice Act. The Commissioner opposes
Skidds’ motion for fees on grounds that the government’s
litigation position and agency action in this case were both
“substantially justified” within the meaning of the EAJA.
For the reasons set forth below, plaintiff’s motion for an
award of attorney’s fees is denied. Discussion
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).
As a prevailing party, plaintiff would be entitled to
recover her attorney’s fees in this case, unless the government’s
position was substantially justified. The Commissioner bears the
burden of showing that even though plaintiff’s earlier motion to
remand was granted, and the ALJ eventually resolved the case in
her favor, still, the government’s litigation position and the
agency’s action, had a “reasonable basis in law and fact” and
was, therefore, “substantially justified.” Morin v . Secretary of
Health & Human Servs., 835 F. Supp. 1431, 1434 (D.N.H. 1993)
(quotations omitted); see also United States v . One Parcel of
Real Property with Bldgs., 960 F.2d 2 0 0 , 208 (1st Cir. 1992).
2 Even when the government’s position is rejected by a court, if
reasonable people could differ as to whether the government’s
position was appropriate, it is “substantially justified.”
Pierce v . Underwood, 487 U.S. 5 5 2 , 565 (1988).
The Commissioner’s initial decision denying Skidds’ claim
for benefits was reversed and remanded for one reason. The court
determined that a remand, under sentence six of 42 U.S.C.
§ 405(g), was appropriate because plaintiff demonstrated both
that new and material evidence was available, and good cause
existed for her failure to present that evidence to the ALJ in
the prior proceeding. See Mills v . Apfel, 244 F.3d 1 , 5 (1st
Cir. 2001); Evangelista v . Secretary of Health & Human Services,
826 F.2d 136, 139-43 (1st Cir. 1987).
The new evidence — a Physical Residual Functional Capacity
Questionnaire prepared by her treating physician, D r . Michael
O’Connell — was “new” because plaintiff did not begin treating
with D r . O’Connell, and the report was not prepared, until after
the ALJ issued his decision. It was “material” because, in the
court’s view, it bore directly on the dispositive issues in this
case, i.e., whether plaintiff retained the residual functional
capacity for sedentary work, as well as related questions
regarding the nature and extent of her alleged non-exertional
3 limitations. And, though it was arguably a call that could have
gone the other way, the court determined that if that evidence
had been presented to the ALJ, a different outcome might have
resulted. As it turned out, after the ALJ was given an
opportunity to review the new evidence, a decision on the merits
favorable to plaintiff was rendered.
As noted, the remand was pursuant to sentence six of 42
U.S.C. § 405(g). A remand of that type “frequently occurs
because the claimant seeks to present new evidence of which the
Agency or claimant was unaware at the time the [Commissioner’s]
benefits determination was made. Thus, in many sentence six
cases the added expenses incurred by the claimant on remand
cannot be attributed to any wrongful or unjustified decisions by
the [Commissioner].” Shalala v . Schaefer, 509 U.S. 2 9 2 , 310
(1993) (Stevens, J., concurring). In the remand order, this
court stated that “the ALJ plainly cannot be faulted for having
rendered his decision without the benefit of evidence that was
never presented to him.” Skidds, 2006 DNH 0 6 0 , at 1 6 . And the
court of appeals has expressed a similar view, noting that the
“ALJ can hardly be expected to evaluate or account for . . .
evidence that he never saw.” Mills, 244 F.3d at 4 .
4 Here, the government has met its burden to show that its
position was substantially justified within the meaning of EAJA,
i.e., that it was “justified to a degree that could satisfy a
reasonable person.” Pierce, 487 U.S. at 565. Indeed, plaintiff
has not offered any developed legal or factual argument
contradicting the government’s showing.
Prior to remand, the Commissioner plausibly argued against a
finding that the evidence proffered by claimant was material,
pointing out that the physician’s report appeared to have been
completed by an assistant and not D r . O’Connell himself; that the
report’s findings seemed based on only one or two examinations
(perhaps performed by someone other than D r . O’Connell) and,
therefore, did not provide reliable bases for the conclusions
expressed; that the medical findings were conclusory in nature;
and, all in all, the report added up to little weight, unlikely
to produce a different result if considered by the ALJ.
Even though the Commissioner did not prevail on those
points, she 1 was still substantially justified in her position.
See Cummings v . Sullivan, 950 F.2d 4 9 2 , 498 (7th Cir. 1991); see
also Roberge v . Chater, 1996 WL 636126 (D.N.H. September 1 9 ,
1 At the time, the Commissioner of the Social Security Administration was Jo Anne B . Barnhart.
5 1996) (EAJA fees denied in social security case where remand was
based on new evidence claim and further proceedings resulted in
favorable decision for claimant); Liles v. Chater, 1995 WL 523625
(D.N.H. June 19, 1995) (same); Leclerc v. Chater, 1996 WL 537710
(D.N.H. July 31, 1996). In this case, absent remand due to new
evidence (itself a close call), the ALJ’s initial decision
denying benefits would, in all likelihood, have been affirmed for
the reasons argued by the Commissioner in her brief supporting
her motion to affirm. Her position in seeking affirmance of the
ALJ’s initial order and her opposition to remand were
substantially justified, and the ALJ’s initial decision denying
benefits was supported by substantial evidence and was
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