[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 00-1142

WILMA BRUNEL,

Plaintiff, Appellant,

v.

COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Torruella, Chief Judge, Stahl and Lynch, Circuit Judges.

Peter Marsh on brief for appellant. Paul M. Gagnon, United States Attorney and David L. Broderick, Assistant U.S. Attorney, on brief for appellee.

December 11, 2000 Per Curiam. After securing a remand under sentence

four of

(g), claimant Wilma Brunel filed an

application for attorneys fees and costs under the Equal

Access to Justice Act (EAJA),

(d)(1)(A).

Because the district court judge who ordered the remand had

passed away by the time claimant's EAJA application became

ripe for adjudication, the application was assigned to a new

judge, who denied it. Claimant appeals this ruling.

We review the denial of the claimant's EAJA

application only for an abuse of discretion, although pure

questions of law are reviewed de novo, and findings of fact

are reviewed for clear error. See Pierce v. Underwood,

(1988); Paris v. H.U.D.,

(1st Cir. 1993); De Allende v. Baker,

(1st Cir.

1989). Although we deem it a very close question, we

conclude that the district court abused its discretion

because, on this record, the Commissioner's exclusive

reliance on the Grid and subsequent defense of that reliance

were not substantially justified. Accordingly, we reverse

and remand for the calculation of an appropriate award of

attorney's fees, for the following reasons.

-2- An abuse of discretion occurs when, "a material

factor deserving significant weight was ignored, an improper

factor was relied upon, or all proper and no improper

factors were assessed, but the district court made a serious

mistake in weighing them. See Casa Maria Hogar Geriatrico,

Inc. v. Rivera-Santis,

(1st Cir. 1994). It

is true that the RFC assessment upon which the ALJ relied

indicated that claimant could sit for two hours continuously

and for a total of six hours per day. This alone might

suggest that claimant could perform the full range of

sedentary work, thereby obviating any need for vocational

evidence. But the district court overlooked the fact that

the bottom half of the very same assessment indicated that

claimant needs to take 15-minute breaks to elevate her legs

from 4-5 times on a good day to 8 or more times on a bad

day. This limitation implies that claimant is not capable

of the full range of sedentary work, for a significant

amount of her sitting time must be spent with her legs

elevated.1 The ALJ's failure to explain why he discredited

this evidence was a serious error.

1By "significant" we mean more than can be accommodated by the three morning, lunch, and afternoon work breaks identified in SSR 96-9p.

-3- Abundant case law, including two district court

cases within this circuit, advises ALJs to take vocational

evidence when faced with claimants with unusual needs to

alternate sitting and standing. See, e.g. Peterson v.

Chater,

(7th Cir. 1996); Jesurum v.

Secretary D.H.H.S.,

(3d Cir. 1995);

Scott v. Shalala,

(5th Cir. 1994); Ragland

v. Shalala,

, 1059 n. 45 (10th Cir. 1993);

Gallant v. Heckler,

(9th Cir. 1984);

Wages v. Secretary of Health and Human Services,

(6th Cir. 1985); Lawler v. Heckler,

(5th Cir. 1985); Gibson v. Heckler,

(11th Cir. 1985); Adie v. Commissioner,

, 270 n. 9 (D.N.H. 1996); Curtis v. Shalala,

(D.N.H. 1992). Cf. Nguyen v. Chater,

(1st Cir. 1999)(cautioning that an inability to remain

seated may erode the sedentary base). In light of

significant amount of countervailing authority, if the ALJ

deemed claimant's case one that justified swimming against

this tide, he should have made his reasons for doing so

explicit.

The ALJ's error was particularly egregious because

he cited the claimant's treating doctor's RFC evaluation in

-4- 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. See

(d)("We will always give good reason in our

notice of determination or decision for the weight we give

your treating source's opinion); SSR 96-2p ("the notice of

determination or decision must contain specific reasons for

the weight given to the treating source's medical opinion,

supported by the evidence in the case record, and must be

sufficiently specific to make clear to any subsequent

reviewers the weight the adjudicator gave to the treating

source's medical opinion and the reasons for that weight.").

We cannot deem such disregard for the Commissioner's own

guidelines substantially justified. See, e.g., Sampson v.

Chater,

(9th Cir. 1996)(suggesting that it

is an abuse of discretion to find an agency's position

substantially justified when the agency violates its own

regulations); Flores v. Shalala

(9th Cir.

1995)(holding ALJ's failure to consider a VE's report

regarding a claimant's mathematical abilities without any

explanation unreasonable enough to justify an award of

-5- attorneys' fees); Cornella v. Schweiker,

(8th Cir. 1984)("It was not reasonable for the Secretary to

ignore her own regulations.").

We further note that the ALJ's decision was

ambiguous on its face. It was not clear whether his finding

that the claimant "should be able to alternate sitting and

standing within these time frames as necessary" meant that

claimant should be able to alternate positions within the

two hours of sitting that the ALJ found her capable of, or

only after she had sat for two hours. The ambiguity becomes

even more apparent when one reads the RFC assessment of Dr.

Ness that the ALJ cited. The ALJ issued his decision on the

heels of SSR 96-2p (requiring ALJs to specify reasons for

the weight they accord treating physicians' opinions) and

SSR 96-9p (directing ALJs to specify the frequency of a

claimant's need to alternate sitting and standing with

respect to the three morning, lunch, and afternoon breaks

generally permitted by sedentary work). Yet the ALJ did not

cite either ruling, although they both took effect on the

day of claimant's administrative hearing. The Appeals

Council was plainly in a position to require the ALJ to

clarify his decision. Its failure to do so was not

substantially justified. See Peterson v. Chater, 96 F.3d

-6- F.3d at 1016 (criticizing Appeals Council for failing to

spot conflict between findings that claimant was incapable

of prolonged sitting and standing and finding that claimant

had RFC for sedentary work); Cummings v. Sullivan,

(7th Cir. 1991)(Appeals Council's decision is part

of agency's prelitigation conduct that must be examined in

determining whether the Commissioner's position is

substantially justified).

In view of the foregoing, we reverse the order

denying claimant's EAJA application and remand for the

district court to calculate an appropriate award of

attorney's fees. The district court should consider whether

the time claimant's counsel spent litigating the issue of

whether claimant's environmental sensitivities further

eroded her capacity for sedentary work should be excluded

from the fee award. See Hensley v. Eckerhart,

(1983).

So ordered. See Local Rule 27(c).

-7-