Fisher v. US Social Security Administration, Commissioner

Filing 18

ORDER denying 14 Motion for Attorney Fees. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Mark Fisher
v.

Civil No. 16-cv-176-JD
Opinion No. 2017 DNH 020

Carolyn Colvin,
Acting Commissioner,
Social Security Administration
O R D E R
After the court reversed and remanded the decision of the
Acting Commissioner denying benefits to Mark Fisher, he moved
for an award of attorneys’ fees pursuant to the Equal Access to
Justice Act (“EAJA”).

The Acting Commissioner objects to the

motion on the grounds that her position was substantially
justified.

Fisher replies, challenging the Acting

Commissioner’s grounds for substantial justification.
Standard of Review
Attorneys who represent successful claimants for social
security benefits may be awarded fees under the EAJA.
§ 2414(d)(1)(A).

28 U.S.C.

In support of a motion for attorneys’ fees, a

claimant must allege facts to show that the position of the
Acting Commissioner was not substantially justified.
§ 2412(d)(1)(B).

The Acting Commissioner, however, bears the

burden of showing that her position was substantially justified.

McDonald v. Sec’y of Health & Human Servs., 884 F.2d 1468, 1475
(1st Cir. 1989).

The court may reduce or deny an award of fees

if the circumstances would make the award unjust.
§ 2412(d)(1)(C).
Discussion
In this case, the ALJ found that Fisher was not disabled
for purposes of his application for supplemental security
income.

At Step Three, the ALJ found that Fisher’s impairment

or impairments did not meet or equal the requirements of the
listed impairment at § 5.05 of 20 C.F.R. Part 404, Subpart P,
Appendix 1.

The ALJ continued on through the five-step

sequential analysis to conclude that jobs existed which Fisher
could do.
For purposes of judicial review, Fisher argued generally
that substantial evidence supported his claim for benefits,
making the ALJ’s findings erroneous.

The court explained that

Fisher, who is represented by counsel, misunderstood the
standard of review.

Instead, the court must affirm the Acting

Commissioner’s decision as long as substantial evidence in the
record supports the ALJ’s findings.

Nguyen v. Chater, 172 F.3d

1, 35 (1st Cir. 1999).
Fisher challenged the ALJ’s finding at Step Three, the
ALJ’s analysis of the opinions of Fisher’s treating physician,

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and the assessment of his residual functional capacity.

The

court considered the issue of the ALJ’s Step Three finding,
which was dispositive, so that the remaining issues were not
addressed.
In his decision, the ALJ made only a cursory finding that
Fisher did not meet the criteria of § 5.05 without considering
any of the specific parts or criteria of that listing.

For

judicial review, Fisher contended that he met the criteria for §
5.05(F), which requires satisfying § 5.05(F)(1) and § 5.05(F)(2)
or (3).

The Acting Commissioner agreed that Fisher had chronic

liver disease with hepatic encephalopathy and that he satisfied
the criteria of § 5.05(F)(3).
The Acting Commissioner argued, however, that Fisher did
not meet the criteria of § 5.05(F)(1), the other necessary
requirement for § 5.05(F), which requires “abnormal behavior,
cognitive dysfunction, changes in mental status, or altered
state of consciousness (for example, confusion, delirium,
stupor, or coma), present on at least two evaluations at least
60 days apart within a consecutive 6–month period.”

Fisher

argued that he did meet § 5.05(F)(3) because he had been
hospitalized three times when he was experiencing an altered
mental state.

The Acting Commissioner then argued that Fisher’s

hospitalizations did not meet the criteria because one occurred
before his application was filed, the other two were not sixty
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days apart, and the records did not include evaluations of his
altered mental state.
The court noted that the ALJ had not considered any of the
issues that had been raised with respect to § 5.05(F).

As a

result, the ALJ’s decision did not show whether he considered
the first hospitalization or whether the relevant period for
purposes of § 5.05(F) included treatment before the application
date.

The court noted the importance of the issue and decided

that “it is appropriate to allow the Social Security
Administration to develop the record at the administrative level
before the issue is reviewed here.”
The court also noted that the ALJ did not explain that his
Step Three finding was based on the lack of an abnormal
evaluation so that the issue raised by the Acting Commissioner
had not been considered at the administrative level.

The court

decided that the criteria of § 5.05(F)(1) should be addressed in
administrative proceedings.

The court reversed and remanded the

decision for further administrative proceedings.
The Acting Commissioner argues that her position in
supporting the ALJ’s finding was substantially justified.

The

Acting Commissioner’s position is substantially justified “if it
is ‘justified to a degree that could satisfy a reasonable
person’—that is, if the position has a ‘reasonable basis both in
law and fact.’”

McLaughlin v. Hagel, 767 F.3d 113, 117 (1st
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Cir. 2014) (quoting Pierce v. Underwood, 487 U.S. 552, 565
(1988)).

The Acting Commissioner’s position may be

substantially justified when the issue is close or novel.

See

Schock v. United States, 254 F.3d 1, 6 (1st Cir. 2001); Knudsen
v. Colvin, 2015 WL 4628784, at *2 (D. Me. July 31, 2015)
(finding no substantial justification where issue was not
novel); Dexter v. Astrue, 2012 WL 3637920, at *1-*2 (D. Me.
2012) (noting that issue was novel without binding precedent and
finding substantial justification).
The Acting Commissioner argues that the court remanded the
case based on an issue that was out of the ordinary.

She

asserts that she “could not have anticipated that the ALJ would
have been called upon to define the word ‘evaluations’.”

She

contends that the court should have defined evaluations without
remanding the case.

She further asserts that she properly

assumed that “the emphasis would be on the evidence, not on the
ALJ’s shortfall in articulating his analysis.”
In reviewing administrative proceedings, including social
security proceedings, the court generally does not affirm an
ALJ’s decision based on grounds other than those relied on by
the ALJ.

Letellier v. Comm’r of Social Security Admin., 2014 WL

936437, at *7-*8 (D.N.H. Mar. 11, 2014).

In this case, the

Acting Commissioner attempted to fill in the gaps in the ALJ’s
decision by providing reasons and pointing to evidence to
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support the Step Three finding.

If the Acting Commissioner’s

reasoning and evidence had demonstrated that the ALJ would
necessarily have reached the same conclusion at Step Three, then
the decision might have been affirmed.

See Ward v. Comm’r of

Social Security, 211 F.3d 652, 656 (1st Cir. 2000).

Here,

however, the Acting Commissioner’s reasoning raised new
questions that could not be resolved on the record.
The parties agree that the issues raised by the Acting
Commissioner’s analysis were novel.

In addition, Fisher applied

the wrong standard in his motion for reversing and remanding the
case.

Considering all of the circumstances, the Acting

Commissioner has carried her burden of showing substantial
justification for her position in this case.
Conclusion
For the foregoing reasons, the claimant’s motion for
attorneys’ fees (document no. 14) is denied.
SO ORDERED.

__________________________
Joseph DiClerico, Jr.
United States District Judge
January 30, 2017
cc:

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

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