Brunel v. Commissioner, Social ( 2000 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]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 42 U.S.C. § 405(g), claimant Wilma Brunel filed an
application for attorneys fees and costs under the Equal
Access to Justice Act (EAJA), 28 U.S.C. § 2412(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, 487
U.S. 552, 557-63 (1988); Paris v. H.U.D., 988 F.2d 236, 238
(1st Cir. 1993); De Allende v. Baker, 891 F.2d 7, 11 (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.
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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, 38 F.2d 615, 618 (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.
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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, 96 F.3d 1015, 1016 (7th Cir. 1996); Jesurum v.
Secretary D.H.H.S., 48 F.3d 114, 119-20 (3d Cir. 1995);
Scott v. Shalala, 30 F.3d 33, 34-35 (5th Cir. 1994); Ragland
v. Shalala, 992 F.2d 1056, 1059 n. 45 (10th Cir. 1993);
Gallant v. Heckler, 753 F.2d 1450, 1457 (9th Cir. 1984);
Wages v. Secretary of Health and Human Services, 755 F.2d
495, 498-99 (6th Cir. 1985); Lawler v. Heckler, 761 F.2d 195,
197-98 (5th Cir. 1985); Gibson v. Heckler, 762 F.2d 1516,
1521 (11th Cir. 1985); Adie v. Commissioner, 941 F. Supp.
261, 270 n. 9 (D.N.H. 1996); Curtis v. Shalala, 808 F.
Supp. 917 (D.N.H. 1992). Cf. Nguyen v. Chater, 172 F.3d 31,
36 (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
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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 20
C.F.R. §404.1527(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, 103 F.3d 918, 922 (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 49 F.3d 562, 570-71 (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
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attorneys' fees); Cornella v. Schweiker, 728 F.2d 978, 985
(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
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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, 950 F.2d
492, 497 (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, 461 U.S. 424,
435-436 (1983).
So ordered. See Local Rule 27(c).
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