UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jillian Virginia Lagasse

v. Civil No. 17-cv-212-JD Opinion No.

Nancy Berryhill, Acting Commissioner, Social Security Administration

O R D E R

Jillian Lagasse sought judicial review, pursuant to

(g), of the decision of the Acting Commissioner of

Social Security, that granted benefits for only a closed period

of disability. The court reversed the Acting Commissioner’s

decision and remanded the case for further proceedings. Lagasse

now moves for an award of attorney’s fees under the Equal Access

to Justice Act (“EAJA”),

. The Acting

Commissioner objects on the grounds that the government’s

position was substantially justified and that the amount of fees

requested is unreasonable.

Standard of Review

Under the EAJA, a prevailing party in a social security

case is entitled to an award of attorney’s fees and other

expenses unless the Acting Commissioner’s position was substantially justified or “special circumstances make an award

unjust.” § 2412(d)(1)(A). For purposes of the EAJA, the Acting

Commissioner’s position “includes not only [her] arguments

before this court, but also the conduct of both the

administrative law judge in denying [the claimant’s] application

for benefits and the Appeals Council’s decision to decline

review.” Garneau v. Berryhill,

, at *1 (D.N.H.

Mar. 19, 2018) (citing § 2412(d)(2)(D)); see also Diggett v.

Berryhill,

(D.R.I. 2017) (citing

McDonald v. Sec’y of HHS,

(1st Cir. 1989)).

To successfully oppose a motion under the EAJA, the Acting

Commissioner bears the burden of showing that her position was

“‘justified to a degree that could satisfy a reasonable person’

– that is, [that] the position ha[d] a ‘reasonable basis both in

law and fact.’” McLaughlin v. Hagel,

(1st

Cir. 2014) (quoting Pierce v. Underwood,

(1988)). If an award of fees is appropriate, the claimant bears

the burden of showing that the amount of fees requested is

reasonable. Manniello v. Berryhill,

, at *1 (D.

Me. Feb. 14, 2018).

2 Discussion

Lagasse seeks $9,000.00 in attorney’s fees under the EAJA.1

The Acting Commissioner objects, contending that her litigation

position was substantially justified. She also argues, in the

alternative, that the amount of fees requested is not

reasonable.

A. Justification

The Acting Commissioner contends that Lagasse is not

entitled to fees under the EAJA because her litigation position

was substantially justified. She argues again, as she did in

support of her motion to affirm, that the ALJ could draw common

sense conclusions from medical records to find that Lagasse had

improved as of December 9, 2015, so that she was no longer

disabled. Because an ALJ may draw such conclusions in

appropriate circumstances, she contends her position here was

substantially justified.2 The Acting Commissioner also contends

1 Lagasse filed a reply in which she asked for an additional $488.00 in fees incurred in generating the reply. Because the reply was filed in violation of LR 7.1(e)(2), however, it was struck. Doc. no. 24. Lagasse did not move for leave to file the reply.

2 The Acting Commissioner argues that her position was substantially justified because the remand was based on a single flaw in the ALJ’s decision. That reasoning is not persuasive because it would make nearly all of the Acting Commissioner’s positions in cases that are reversed and remanded substantially justified.

3 that the ALJ noted Lagasse’s drug-seeking behavior, which could

provide an explanation for her many hospital and provider visits

after the date the ALJ found she was not longer disabled.

As is thoroughly explained in the order, the ALJ’s finding

of a closed period of disability was based on a functional

capacity assessment that Lagasse would be absent from work three

or four times each month due to her impairments. The medical

records the ALJ interpreted to show improvement did not address

Lagasse’s functional capacity, or, more importantly, her likely

absenteeism. The records at most showed some normal physical

results on examination but did not mention functional capacity

or a need to be absent from work. Further, the number of

hospital and provider visits in the period when the ALJ found

improvement, along with the seriousness of Lagasse’s underlying

impairments, weigh heavily against a finding that she would no

longer experience absenteeism.

The Acting Commissioner also argues that she “relied on the

ALJ’s observation that the medical record showed serious and

ongoing drug-seeking.” She contends that the medical record

supports a finding that Lagasse sought treatment to obtain drugs

rather than for medical needs. The ALJ, however, did not make

that finding.

4 In finding a closed period of disability, the ALJ reviewed

Lagasse’s substance abuse and found that she was disabled during

that period “with or without substance abuse.” The ALJ further

stated that while he acknowledged substance abuse, he found

“insufficient support for a finding that it is material to the

finding of disability.” With respect to Lagasse’s functional

capacity after December 9, 2015, the ALJ found that her

substance abuse was “non-severe” although she did engage in

“some ongoing drug-seeking behavior.” The ALJ did not ascribe

the extensive treatment sought after December 9, 2015, to drug

seeking, and instead concluded that there was “insufficient

support for a finding that the claimant’s substance abuse and

drug-seeking behavior is an issue material to the finding of

disability.” Admin. Rec. at 32.

The Acting Commissioner has not shown that the ALJ’s

decision in this case, the Appeals Council’s denial of Lagasse’s

request for review, and her own position for purposes of

judicial review were substantially justified. Therefore, an

award of fees under the EAJA is appropriate.

B. Fees

Lagasse asks for an award of $9,000.00 in fees. The Acting

Commissioner objects, arguing that the fees are excessive

5 because counsel spent unreasonable amounts of time on certain

aspects of the case.

Lagasse’s counsel provided an affidavit in support of the

fee request. She states that the hourly rates charged are

$196.00 for attorney time and $81.00 for paralegal time, which

are lower rates than their usual and customary rates. She also

states that she substantially reduced the amount. Counsel

refers to Exhibit A as the statement of itemized time.

As the Acting Commissioner points out, the supporting

documentation for the fee request is confusing. At the top of

the first page of Exhibit A, which is an invoice dated May 9,

2018, there is a handwritten note: “EAJA RATES USED:

JG=$196/hr DO=$81/hr.” The total of time for professional

services listed on three pages is 84.30 hours, which yields a

“balance due” of $15,648.80. Some of the time entries, however,

have been crossed out. Below that amount, there is a

handwritten note “less 4.6 hrs @ 81-- $372.60” then a line drawn

and $15,276.20 entered below the line. Following that, there is

a handwritten note: “EAJA REQUESTED: $9,000.00 (Reduced).”

Exhibit A then continues with what appears to be a second

copy of the same invoice that has a handwritten note at the top

which lists the “usual and customary rates” for Lagasse’s

counsel at “$275/hr” and the rate for the paralegal at “$90/hr.”

6 That copy of the invoice does not show any time entries as

crossed out. The total time recorded is 84.30 and the balance

due is $21,776.50.

It appears, reading the documents together, that Lagasse’s

counsel is showing that she and her paralegal worked a total of

84.30 hours on the case. At the reduced hourly rate for

purposes of a fee award under the EAJA, counsel would charge a

total of $15,276.20 for that time. Counsel decided to discount

the fee request to $9,000.00. Using a reverse calculation based

on the $9,000.00 amount and $196.00 as the hourly rate, counsel

is requesting fees for about 45.9 hours of work.

The Acting Commissioner argues that the amount of fees

requested by Lagasse is excessive because this was a routine

case with only one issue. The Acting Commissioner argues that

such routine cases should require between twenty and forty hours

of attorney time. Lagasse contends that her fee request is

reasonable.

Other courts in the First Circuit have found fees for more

than forty hours of work were reasonable in cases without a

string of issues. See Diggett,

(finding

106.9 hours reasonable where case was remanded on a single issue

and rejecting as arbitrary Acting Commissioner’s proposal to

limit the request to 40 hours). While the court agrees with the

7 Acting Commissioner that Lagasse’s counsel’s work on the joint

factual statement resulted in an excessively long document,

counsel also significantly reduced the total amount of fees

requested, which accounts for the excess time.3 Overall, the

court finds that the fees requested are reasonable.

Lagasse’s attorney asks that the fees be paid directly to

her, rather than to Lagasse, pursuant to the terms of their

assignment agreement. In that agreement, Lagasse assigned her

“right to receive the EAJA award to [her] attorney, Janine

Gawryl, to cover the legal work she and her paralegals did on

[her] behalf in Federal Court.” Doc. 21-3. The Acting

Commissioner does not oppose the assignment or payment to

Lagasse’s attorney. Cf. Kerr for Kerr v. Comm’r of Social

Security,

(6th Cir. 2017); Heims v.

Berryhill,

, at *2 (N.D. Iowa, May 25, 2018);

Skvorak v. Berryhill,

(D.D.C. 2017).

Because EAJA fees are payable to the litigant, rather than

counsel, they are subject to offset to satisfy any preexisting

debt owed by Lagasse to the United States. Astrue v. Ratliff,

(2010). If Lagasse has no debt owed to the

3 The Local Rules in this district have been amended to eliminate the joint factual statement and instead require the parties to provide factual statements that meet certain conditions, with page limitations. LR 9.1. Therefore, a 59 page factual statement will no longer be allowed.

8 United States that is subject to offset, the fee award is

payable to her attorney. See Zayas v. Colvin,

,

at *1 (D. Mass. Sept. 19, 2016).

Conclusion

For the foregoing reasons, the claimant’s motion for an

award of fees (document no. 21) is granted. Lagasse is awarded

$9,000.00 in attorney’s fees.

The Acting Commissioner shall pay the fee award to

Lagasse’s attorney, Janine Gawryl, less the amount of any

preexisting debt that Lagasse owes which is subject to offset.

SO ORDERED.

__________________________ Joseph A. DiClerico, Jr. United States District Judge

June 14, 2018

cc: Janine Gawryl, Esq. Robert J. Rabuck, Esq.

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