LaBrecque v. US Social Security Administration, Commissioner

Filing 24

///ORDER denying 13 claimant's motion for attorney's fees. So Ordered by Chief Judge Steven J. McAuliffe. (lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
David A. LaBrecque,
Plaintiff
v.

Case No. 10-cv-180-SM
Opinion No. 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.
13.

Doc. no.

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. no. 11.

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. no. 11, pg. 17.

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.

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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 No. 07-cv-48-SM, 2009 WL 903737, at *1 (D.N.H. March
31, 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.”
450 (1st Cir. 1985).

United States v. Yoffe, 775 F.2d 447,

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.
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.

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The

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 it, 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. no. 11, pg. 15.

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. no. 11, pg. 17), and when “the
dispositive issue [is] somewhat close.”

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Id.

Conclusion
For the reasons stated, the claimant’s motion for attorney’s
fees and costs (doc. no. 13) is denied.

SO ORDERED.
____________________________
Steven J. McAuliffe
Chief Judge
August 24, 2011
cc:

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

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