Brunei v. SSA CV-97-306-M 12/03/99 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Wilma Brunei, Claimant

v. Civil No. 97-306-M

Kenneth S. Apfel, Commissioner Social Security Administration, Defendant

O R D E R

On January 26, 1999, this court (Devine, S.J.) denied Wilma

Brunei's motion to reverse the Commissioner's denial of her

application for benefits under Title II of the Social Security

Act, but remanded the matter to the administrative law judge for

further proceedings. On April 23, 1999, Brunei filed a timely

motion for fees and other expenses.1 She claims that because she

was the prevailing party and because the Commissioner's position

was not substantially justified, she is entitled to an award of

reasonable attorney's fees. See

(the Egual

Access to Justice Act, or "EAJA"). The Commissioner objects,

saying that his position (seeking affirmance of the ALJ's

1 "A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses . . .."

(d)(1)(B). The Supreme Court has interpreted this statutory provision to mean that an "EAJA application may be filed until 30 days after a judgment becomes 'not appealable' - i.e., 30 days after the time for appeal has ended." Shalala v. Schaefer,

(1993). Because the judgment in this case became "not appealable" 60 days after its entry, see Fed. R. A p p . P. 4(a), claimant had 90 days from the entry of judgment within which to file her EAJA petition. decision denying Brunei benefits) was substantially justified.

And, even if the court concludes that his position was not

substantially justified, the Commissioner asserts that Brunei's

request for attorney's fees is excessive.

Standard of Review

The Equal Access to Justice Act, under which Brunei seeks an

award of attorney's fees, provides:

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.

A party seeking an award of fees and other expenses shall [file a timely application]. The party shall also allege that the position of the United States was not substantially justified. Whether or not the position of the United States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought.

(d)(1)(A) and (B) (emphasis supplied). The

language of that statute makes clear that it is unlike other fee-

shifting statutes, which generally authorize an award of costs

and/or attorney's fees to a "prevailing party." Instead, to

recover fees under the EAJA, a party must prevail, and the court

must conclude that the government's position was not

2 substantially justified. See McDonald v. Secretary of Health and

Human Services,

(1st Cir. 1989) ("Under

the EAJA, . . . the government must foot the legal bills of its

adversaries . . . only if the adversaries 'prevail' and ifthe

government's position is not 'substantially justified.'")

(emphasis supplied).

In opposing a party's reguest for fees under the EAJA, the

government bears the burden of demonstrating that its position

was substantially justified. See McDonald,

.

The Supreme Court has explained that the government meets that

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,

(1988) .

Background

In concluding that the ALJ erred when he held that Brunei

was not disabled. Senior Judge Devine observed:

The error in the ALJ's findings relative to Brunei's need to alternate sitting and standing, within the context of sedentary work, is the ALJ's perception of the degree to which Brunei will be able to do so as necessary. The ALJ states that Brunei "should be able to alternate sitting and standing within these time frames as necessary," Tr. at 13; however, the ALJ offers no evidence that Brunei's need to do so is compatible with the reguirements of the sedentary occupational base.

3 Brunei v. Commissioner, No. 97-306-M, slip op. at 8 (D.N.H. 1999)

(Devine, S.J.) (emphasis in original). Consequently, the court

concluded that, "[t]he missing link in the ALJ's evidentiary

burden is the testimony of a vocational specialist."

In light of the ALJ's failure to consult a vocational

specialist, Brunei claims that the Commissioner's position (in

moving to affirm the ALJ's decision) was not "substantially

justified." See

(d)(1)(A). The Commissioner

disagrees, relying, at least in part, upon the provisions of

Social Security Ruling ("SSR") 96-9p,

(July 2,

1996), which says:

Alternate sitting and standing: An individual may need to alternate the required sitting of sedentary work by standing (and, possibly, walking) periodically. Where this need cannot be accommodated by scheduled breaks and a lunch period, the occupational base for a full range of unskilled sedentary work will be eroded. The extent of erosion will depend on the facts in the case record, such as the frequency of the need to alternate sitting and standing and the length of time needed to stand.

(emphasis supplied). See also SSR 83-12,

at *3 ("Persons who can adjust to any need to vary sitting

and standing by doing so at breaks, lunch periods, etc., would

still be able to perform a defined range of work."). The

Commissioner claims that, because Brunei was able to sit for

extended periods (up to two hours at a time, and for a total of

six hours during the day), her need to "alternate sitting and

standing as necessary within these time frames," Brunei v.

4 Commissioner, slip op. at 6-7 (emphasis supplied), could be

accommodated by "scheduled breaks and a lunch period." SSR 96-9p

at *7 .

To be sure, there are cases in which a claimant must

alternate between sitting and standing (or walking) so often that

he or she cannot be accommodated by scheduled breaks and a lunch

period. In those cases, "the occupational base for a full range

of unskilled sedentary work will be eroded." SSR 96-9p at *7.

The degree to which the relevant occupational base is eroded is,

however, a factual guestion, to be resolved in the first instance

by the ALJ. In those circumstances, the SSR provides that:

the extent of the erosion will depend on the facts in the case record, such as the freguency of the need to alternate sitting and standing and the length of time needed to stand. . . . It may be especially useful in these situations to consult a vocational resource in order to determine whether the individual is able to make an adjustment to other work.

(emphasis supplied). Conseguently, when a claimant must be

able to alternate between sitting and standing freguently or "as

needed," courts have directed ALJ's to consult vocational

resources before making a disability determination. See, e.g.,

Scott v. Shalala,

(1st Cir. 1994) ("Because

[claimant] must alternate between sitting and standing as needed,

[her] exertional capabilities do not fit within the definition of

sedentary work.") (emphasis supplied). See also SSR 83-13, at *

3 ("most jobs have ongoing work processes which demand that a

5 worker be in a certain place or posture for at least a certain

length of time to accomplish a certain task. Unskilled types of

jobs are particularly structured so that a person cannot

ordinarily sit or stand at will. In cases of unusual limitation

of ability to sit or stand, a [vocational resource] should be

consulted to clarify the implications for the occupational

base.") (emphasis supplied).

As the Social Security Rulings make clear, however, the mere

fact that a claimant must alternate between sitting and standing

does not dictate a finding of disability, nor does it necessarily

compel the ALJ to look beyond the Medical-Vocational Guidelines

(also known as the "Grid") and consult a vocational resource.

Instead, where a claimant's need to alternate between sitting and

standing is not "unusual" or can otherwise be accommodated by

scheduled breaks and lunch, the occupational base is not

significantly eroded and the ALJ may rely exclusively upon the

Grid in making a disability determination. See SSR 96-9p and SSR

83-13.

Here, the court observed that Brunei's treating physician

opined that she "can sit for two hours continuously and six hours

in an eight-hour day, and that she can stand in twenty-minute

increments and walk in ten to fifteen-minute increments for two

hours out of an eight-hour day." Brunei v. Commissioner, slip

op. at 6 (citing Administrative Transcript at 137).

6 Nevertheless, the court implicitly found that Brunei's need to

alternate between sitting and standing was not sufficiently

developed to permit a determination as to whether she could be

"accommodated by scheduled breaks and a lunch period." SSR 96-

9p, at *7. Accordingly, the court remanded the matter so the ALJ

might develop those facts and consult a vocational resource as

necessary while revisiting his disability determination.

Of course, whether Brunei's need to alternate between

sitting and standing at roughly two-hour intervals could be

accommodated by regular breaks and lunch, or whether she

presented an "unusual limitation of ability to sit or stand," SSR

83-13, is largely a judgment call. Judge Devine plainly thought,

perhaps out of an abundance of caution and in fairness to Brunei,

that the circumstances were such that the ALJ probably should

consult a vocational resource before concluding Brunei was not

disabled.

In reviewing the record presented in this proceeding,

however, the court cannot conclude that the Commissioner's

position was not "substantially justified." To the contrary, the

record suggests that Brunei's need to alternate between sitting

and standing at roughly two-hour intervals might very well be

accommodated by regularly scheduled work-place breaks and lunch

(thus obviating the need for the ALJ to consult a vocational

resource) . Unlike, for example, the claimant in Scott, supra,

7 Brunei had the ability to sit for prolonged and uninterrupted

periods of time (i.e., for up to two hours, whereas Ms. Scott had

to alternate between sitting and standing "as needed").

Stated somewhat differently, the record does not demonstrate

that Brunei's need to alternate between sitting and standing was

so "unusual" as to compel the conclusion that the Commissioner's

position was anything less than substantially justified. To the

contrary, the Commissioner's assertion that Brunei was not

disabled because her need to alternate between sitting and

standing could be readily accommodated by regular breaks in the

workplace had "a reasonable basis in law and fact." Pierce v.

Underwood,

. The full range of sedentary work

reguires an individual to be able to stand and walk for a total

of approximately two hours during an eight-hour workday. See SSR

96-9p at *6. See also

(a). Brunei is

capable of standing/walking for a total of two hours each day.

Sedentary work also reguires an individual to be able to sit for

approximately six hours during an eight-hour workday, in roughly

two-hour blocks of time. See SSR 96-9p at *6 ("In order to

perform a full range of sedentary work, an individual must be

able to remain in a seated position for approximately 6 hours of

an 8-hour workday, with a morning break, a lunch period, and an

afternoon break at approximately 2-hour intervals."). Brunei is

capable of sitting for a total of six hours each day in two hour

intervals. The only issue presented by Brunei's reguest for fees is whether her inability to sit for more than two hours at a time

(and/or her inability to stand for more than 15 to 20 minutes at

a time) so plainly and substantially eroded the relevant

occupational base that the Commissioner's efforts to sustain the

ALJ's decision (concluding, without the benefit of a vocational

resource, that Brunei was not disabled) were not "substantially

justifled."

For the reasons set forth above, the court concludes that

while the ALJ may have erred in failing to consult vocational

resources, his disability determination (based solely upon an

application of the Grid) was not so lacking in either a factual

or legal basis as to render the Commissioner's efforts to sustain

that ruling less than "substantially justified." The relevant

Social Security Regulations and Social Security Rulings make

clear that when a claimant's need to alternate between sitting

and standing/walking is not "unusual" and can be accommodated by

regularly scheduled breaks, the ALJ need not consult a vocational

resource when making a disability determination. While

reasonable minds might disagree as to how the ALJ should have

proceeded in this matter, his decision to rely exclusively upon

the Grid (and forego any reference to a vocational resource) in

making his disability determination was not so plainly lacking in

legal or factual support as to render the Commissioner's position

less than "substantially justified." Conclusion

The Commissioner's position (in moving to sustain the ALJ's

disability determination) had a reasonable basis in law and fact

and was, therefore, "substantially justified."

As noted above, the EAJA adds an additional layer to the

typical fee-shifting statute. In order to recover fees from the

government, not only must a party "prevail," but the court must

also conclude that the government's position was not

substantially justified. Here, the record simply does not lend

itself to such a finding. Accordingly, claimant's motion for an

award of expenses under the EAJA (document no. 12) is denied.

The Clerk of the Court shall enter judgment in accordance with

this order and close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

December 3, 1999

cc: Peter K. Marsh, Esg. David L. Broderick, Esg.

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