Rex v . SSA 07-CV-048-SM 03/31/09
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Melissa Rex, on behalf of
her daughter, A.R.,
Claimant
v. Civil N o . 07-cv-48-SM
Opinion N o . 2009 DNH 042
Michael J. Astrue, Commissioner,
Social Security Administration,
Respondent
O R D E R
By prior order, the court vacated the Commissioner’s denial
of Melissa Rex’s application, filed on behalf of her daughter,
for children’s Supplemental Security Income Benefits, and
remanded the case for further proceedings (document n o . 15) (the
“December Order”). M s . Rex now moves for an award of attorney’s
fees and costs under the Equal Access to Justice Act (“EAJA”).
The Commissioner opposes claimant’s 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. He does not, however, challenge the amount claimant
seeks to recover in fees.
For the reasons set forth below, claimant’s motion for an
award of attorney’s fees is granted.
Standard of Review
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) (emphasis supplied). The EAJA is
unlike typical fee-shifting statutes, which generally authorize
an award of costs and/or reasonable attorney’s fees to a
“prevailing party.” Instead, 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.
See McDonald v . Secretary of Health & Human Services,
884 F.2d
1468, 1469-70 (1st Cir. 1989) (“Under EAJA, . . . the government
must foot the legal bills of its adversaries . . . only if the
adversaries ‘prevail’ and if the government’s position is not
‘substantially justified.’”).
Under the EAJA, the “government’s position” in this case
includes not only the Commissioner’s arguments before this court,
but also the conduct of both the administrative law judge (“ALJ”)
2
in denying claimant’s application for benefits and the Appeals
Council’s decision to decline review. See 28 U.S.C. §
2412(d)(2)(D) (“‘position of the United States’ means, in
addition to the position taken by the United States in the civil
action, the action or failure to act by the agency upon which the
civil action is based.”). See also Cummings v . Sullivan,
950
F.2d 4 9 2 , 497 (7th Cir. 1991); Brunel v . Commissioner, Social
Sec. Admin.,
2000 WL 1815946, 2 (1st Cir. 2000).
In opposing a party’s request for fees under the EAJA, the
government bears the burden of demonstrating that its position
was substantially justified. See, e.g., Scarborough v . Principi,
541 U.S. 4 0 1 , 414 (2004) (“The burden of establishing ‘that the
position of the United States was substantially justified,’
§ 2412(d)(1)(A) indicates and courts uniformly have recognized,
must be shouldered by the Government.”). See also McDonald,
884
F.2d at 1475. The Supreme Court has explained that the
government carries its burden by demonstrating that its position
had “a reasonable basis in law and fact” and was justified “to a
degree that could satisfy a reasonable person.” Pierce v .
Underwood,
487 U.S. 5 5 2 , 565 and 566 n.2 (1988). In other words,
the government’s position will be considered “substantially
justified” if “reasonable people could differ as to the
3
appropriateness of the contested action.” Id. at 565 (citation
and internal punctuation omitted).
Discussion
In granting claimant’s motion to remand this matter for
further proceedings, the court concluded that the record before
the ALJ was inadequately developed. Among other things, the
court noted that:
the ALJ was obligated to more fully develop the record
- particularly since the Childhood Disability
Evaluation form completed by the non-examining
physician, to which the ALJ ascribed “significant
weight,” transcript at 2 0 , is so deficient as to be
worthy of little, if any, discussion.
December Order at 9 (footnote omitted). The court also concluded
that “some of the conclusions reached by the ALJ [were] simply
unsupported by logic or reason.” Id.
For example, in his decision, the ALJ wrote that, “The
claimant’s parent’s explanation that [A.R.’s] absence
at the hearing was because she was at school
demonstrates the claimant’s ability to function in age
appropriate activities just as any other unimpaired
child at like age.” Transcript at 2 0 . Later, the ALJ
concluded that her presence at school “demonstrates
[A.R.’s] ability to function in a school setting.”
Transcript at 2 2 . The court disagrees. At most, all
one can infer from A.R.’s attendance at school is that
she was able to successfully navigate the half-mile
walk to school that day with her mother. See
Transcript at 195. It says nothing about her ability
to function well or appropriately in a school setting,
4
nor does it shed any light on whether she might be
disabled within the meaning of the Act.
Id. at 9-10 (emphasis supplied).
Finally, the court concluded that the differential
diagnostic report prepared by D r . Fitzgerald, while not
conclusive evidence of A.R.’s disability, unmistakably suggested
the need for additional testing. Id. at 1 0 .
Among other things, D r . Fitzgerald concluded that,
given the results of his testing, there were
“suggestions of learning disability issues [ ] across
Verbal Comprehension, Perceptual Reasoning, Working
Memory, and Processing Speed areas.” Transcript at
128. He also noted that it “would be helpful to make
sure that there are no significant difficulties with
hearing or vision that might be contributing to
[A.R.’s] learning problems.” Ultimately, D r .
Fitzgerald concluded that:
There is every indication that [A.R.] has an ADHD
substrate. It would be beneficial for her parents
to talk with M r . Jacobson about the possibility of
a trial on stimulant medication to see if that
helps [A.R.] function more effectively. However,
it is also important to rule out any hearing or
vision issues, and to further explore the ocular
motor difficulties (lazy e y e ) , for which she has
already been treated. There were also indications
of language processing difficulties, particularly
receptive language, visual perceptual motor
difficulties, and reading difficulties that
require further specialized assessment from the
speech and language specialist, occupational
therapist, and reading teacher, respectively.
[A.R.] shows a profile with several co-occurring
issues. They all need to be fully assessed and
treated for [A.R.] to function successfully.
5
Id. at 10-11 (quoting administrative transcript at 129-30)
(emphasis supplied in December Order).
To be sure, the Commissioner’s arguments before this court
in support of the ALJ’s adverse disability determination were
cogent and well-supported. That does not, however, compel the
conclusion that the government’s position throughout this process
was “substantially justified.” In fact, in light of the record
presented to this court on appeal, and the conclusions set forth
in its December Order, the court is constrained to concluded the
ALJ’s failure to more fully develop the administrative record (as
is his obligation), as well as the Appeals Council’s decision to
decline review, were not substantially justified.
Given the claimant’s modest means, the sparse nature of the
medical record presented to the ALJ, and the unequivocal opinion
of D r . Fitzgerald that further testing of A.R. was in order, the
government had an obvious obligation to more fully develop that
record before ruling on the merits of claimant’s application. As
the Supreme Court has observed:
The differences between courts and agencies are nowhere
more pronounced than in Social Security proceedings.
Although many agency systems of adjudication are based
to a significant extent on the judicial model of
decisionmaking, the SSA is perhaps the best example of
an agency that is not. Social Security proceedings are
inquisitorial rather than adversarial. It is the ALJ’s
6
duty to investigate the facts and develop the arguments
both for and against granting benefits, and the
Council’s review is similarly broad.
Sims v . Apfel, 530 U.S. 103, 110-11 (2000) (citations and
internal punctuation omitted). See also Evangelista v . Secretary
of Health & Human Services,
826 F.2d 136, 142 (1st Cir. 1987);
Currier v . Secretary of Health, Educ. & Welfare,
612 F.2d 5 9 4 ,
598 (1st Cir. 1980). See generally
404 C.F.R. § 404.1545(a)(3)
(“[B]efore we make a determination that you are not disabled, we
are responsible for developing your complete medical history,
including arranging for a consultative examination(s) if
necessary, and making every reasonable effort to help you get
medical reports from your own medical sources.”).
Finally, it is probably worth addressing one argument
advanced in the Commissioner’s opposition. The Commissioner
points out that, in the December Order, the court recognized that
“there is not a great deal of evidence in the record to support
the conclusion that A.R. is disabled (that is ‘extremely’ limited
in one domain of functioning or ‘markedly’ limited in two).”
December Order at 9. Based upon that observation, the
Commissioner argues that, when the evidence of disability is very
close or even in equipoise, the government’s position (in
opposition to an award of benefits) i s , at least in the typical
case, “substantially justified.”
7
But, as the court pointed out in the December Order, the
question was not whether there was substantial evidence to
support the claimant’s position, but rather whether the ALJ
should have recognized the need to augment the (sparse) existing
record by, for example, ordering the additional tests suggested
by D r . Fitzgerald. He did not. S o , while the Commissioner may
be correct in asserting that claimant failed to meet her burden
of proof before the ALJ (this court never resolved that issue),
it is not dispositive of her request for fees. The court did not
remand the matter based upon a perceived error in the way the ALJ
weighed the available evidence. Instead, it remanded the matter
because the ALJ (and the Appeals Council) committed a substantial
error by failing to recognize the obvious need to supplement
A.R.’s medical record, so a truly informed response might be
provided to her application for Social Security benefits. That
error tainted the entire process of reviewing claimant’s
application and formed the basis of this court’s decision to
remand the matter for further proceedings.
Conclusion
In light of the foregoing, the court concludes that the
Commissioner has failed to carry his burden of demonstrating that
his position throughout this process was “substantially
justified.” See 28 U.S.C. § 2412. Claimant i s , then, entitled
8
an award of reasonable attorney’s fees. As noted above, the
Commissioner does not challenge the amount claimant requests;
rather, he challenges only her legal entitlement to those fees.
Accordingly, claimant’s initial request for fees (document no.
17), as well as her supplemental request for fees (document no.
23) are granted.
The Clerk of Court shall enter an amended judgment in
accordance with this order and close the case.
SO ORDERED.
Steven J. ___ McAuliffe
Chief Judge
March 31, 2009
cc: Francis M. Jackson, Esq.
Karen B. Fitzmaurice, Esq.
Robert J. Rabuck,Esq.
9
