UNITED STATES DISTRICT COUR

DISTRICT OF NEW HAMPSHIRE

James Garneau, Claimant Case No. 16-cv-448-SM v. Opinion No.

Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Defendant

O R D E R

By order dated October 10, 2017, the court vacated the

Acting Commissioner’s decision denying James Garneau’s

application for Social Security Disability Benefits, and

remanded the case for further proceedings (document no. 12) (the

“October Order”). Mr. Garneau now moves for an award of

attorney’s fees under the Equal Access to Justice Act (the

“EAJA”). See

(d)(1)(A). The Acting

Commissioner opposes Garneau’s motion for fees on grounds that

the government’s agency action and it’s litigation position

before this court were both “substantially justified,” within

the meaning of the EAJA.

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.

(d)(1)(A) (emphasis supplied). So, 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,

, 1469–70 (1st Cir. 1989) (“Under

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

adversaries in civil cases (other than tort actions), but 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 Acting Commissioner’s arguments before

this court, but also the conduct of both the administrative law

judge in denying Garneau’s application for benefits and the

Appeals Council’s decision to decline review. See

2 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.”).

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 Scarborough v. Principi,

(2004). The Supreme Court has explained that the

government carries its burden by showing 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,

, 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

appropriateness of the contested action.”

(citation

and internal punctuation omitted). It may also be considered

substantially justified when the issue presented was close or

involved novel questions of law. See, e.g., Schock v. United

States,

(1st Cir. 2001) (“When the issue is a

novel one on which there is little precedent, courts have been

reluctant to find the government’s position was not

substantially justified.”).

3 Discussion

This case did not implicate any novel (or even debatable)

questions of law. Rather, it involved application of the well-

established “treating source rule.” See

(c)(2). This court (DiClerico, J.) recently described

that rule as follows:

An ALJ is required to consider the medical opinions along with all other relevant evidence in a claimant’s record.

(b). Medical opinions from all sources are evaluated based on the nature of the medical source’s relationship with the claimant, the consistency of the opinion with the other record evidence, the medical source’s specialty, and other factors that may be brought to the ALJ’s attention. § 404.1527(c). “[U]nder the treating source rule, controlling weight will be given to a treating physician’s opinion on the nature and severity of a claimant’s impairments if the opinion is well- supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record.”

Squeglia v. Berryhill, No. 16-CV-238-JD,

,

at *4, (D.N.H. Feb. 28, 2017) (DiClerico, J.) (quoting

Arrington v. Colvin,

(D. Mass. 2016),

aff'd sub nom. Arrington v. Berryhill, No. 17-1047,

(1st Cir. Feb. 5, 2018)) (emphasis supplied).

Here, the court held that the ALJ failed to properly apply

the “treating source rule” by neglecting to give good reasons

for discounting Dr. Rock’s opinion that Garneau would likely be

4 absent from work three or more times each month as a result of

his impairments - an opinion that was shared by Nurse Dustin.

See October Order at 23 (“Dr. Rock’s opinion and Nurse Dustin’s

opinion are not just consistent; they are identical.”). See

generally Brunel v. Commissioner,

,

at *2 (1st Cir. 2000) (“The ALJ’s error was particularly

egregious because he cited the claimant’s treating doctor’s RFC

evaluation in support of his own RFC findings, while ignoring,

without any explanation, that part of the doctor’s evaluation

which indicated that claimant’s capacity for sedentary work was

significantly compromised. The ALJ thus plainly violated the

Commissioner’s own regulations and rulings.”). Indeed, the

opinions of Dr. Rock and Nurse Dustin were the only opinions in

the entire medical record that addressed Garneau’s likely

absences from work. And, critically, both of those opinions

were supported by objective medical signs. See October Order at

21-23. Given that those opinions were well-supported, and in

light of the absence of contrary evidence, the court noted that

not only had the ALJ failed to comply with the “treating source

rule,” but “it would appear that by determining that Garneau

would be absent from work two days a month or fewer, the ALJ may

have run afoul of the rule that generally precludes ALJs from

interpreting raw medical data in functional terms and

5 determining a claimant’s RFC without support from an expert

opinion.” Id. at 23.

Parenthetically, the court notes that the Acting

Commissioner suggests, with at best ambiguous legal support,

that whether (and, if so, how much) a claimant is likely to be

absent from work each month due to his or her impairment(s) is a

question reserved to the Commissioner under

(d). So, the argument goes, the ALJ was entirely within

her rights to simply ignore the two opinions from treating

sources about Garneau’s likely absences, without need for any

explanation. The court disagrees. See

(a)(1) (“Medical opinions are statements from acceptable

medical sources that reflect judgments about the nature and

severity of your impairment(s), including your symptoms,

diagnosis and prognosis, what you can still do despite

impairment(s), and your physical or mental restrictions.”). A

medical expert’s opinion about the number of days a claimant is

likely to miss work due to his or her impairments is akin to an

opinion about the number of hours a claimant can remain seated,

or the amount a claimant can lift, or a claimant’s need for

unscheduled breaks, or a claimant’s need to avoid repetitive

motions - all of which are so-called “functional limitations,”

on which medical experts are entitled to opine. See, e.g.,

6 Lampkin v. Comm’r of Social Security, No. 5:15-CV-0944 (DEP),

, at *3 (N.D.N.Y. Aug. 25, 2016) (“[I]t is not

true that the opinion that [claimant] would be absent from work

four times per month is a matter reserved to the

Commissioner.”); Dote-Lowery v. Colvin, No. 6:14-CV-00570,

, at *4 (N.D.N.Y. Oct. 1, 2015) (“Dr. Mulholland’s

medical source statement does not appear to give a[n] opinion as

to the ultimate issue of Plaintiff’s RFC, but only on the issue

of Plaintiff’s ability to attend to work on a regular basis.

While this information is relevant to the RFC determination, it

is not an opinion on the ultimate issue. Thus, this does not

constitute a meritorious basis to reject Dr. Mulholland’s

medical source statement.”). See also Cox v. Berryhill, No.

4:15-CV-3265-TER,

, at *4 (D.S.C. Feb. 16, 2017);

Moliere v. Colvin, No. 6:15-CV-476-ORL-MCR,

, at

*4 (M.D. Fla. Sept. 21, 2016).

Finally, the court notes that in granting Garneau’s motion

to remand, the court observed that the record strongly suggests

that his disc disease qualifies as a listed impairment - a

finding that would resolve his claim at step three of the

sequential analysis. See October Order at 24 (“Garneau’s

medical records appear to document most if not all of the

7 findings necessary to support a determination that Garneau’s

degenerative disc disease qualifies as a listed impairment.”).

The point is this: this was not a particularly close case,

nor did its resolution require novel interpretations of

applicable law. Rather, it involved a clear and straight-

forward error on the part of the ALJ. Such mistakes happen.

But, at least in the context of this case, the nature of that

error precludes the Acting Commissioner from carrying her burden

to demonstrate that her decision to deny Garneau’s application

for benefits, as well as her defense of that decision before

this court, were “substantially justified.”

Conclusion

For the foregoing reasons, as well as those set forth in

claimant’s memoranda, the court concludes that the Acting

Commissioner has not demonstrated that the position of the

government was “substantially justified.” See

(d)(1)(A). And, because she does not object to claimant’s

motion for fees on other grounds, that motion (document no. 14)

is granted. Claimant is awarded reasonable attorney’s fees in

the amount of $6,632.50. See Affidavit of Attorney Ruth Heinz

(document no. 14-2) and Exhibit 1 (document no. 14-2).

8 SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

March 19, 2018

cc: Ruth D. Heintz, Esq. Robert J. Rabuck, AUSA

9