UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Bryan D. Fleming

v. Civil No. 05-cv-262-JD

Jo Anne B. Barnhart, Commissioner

Social Security Administration

O R D E R

The court previously reversed and remanded the

Commissioner’s decision that denied Bryan D. Fleming’s

application for benefits. Fleming now moves for an award of

attorneys’ fees and other expenses under the Equal Access to

Justice Act (“EAJA”), 28 U.S.C. § 2412(d). The Commissioner

opposes an award of fees and expenses on the ground that her

position was substantially justified. Alternatively, the

Commissioner asserts that the amount of the request is excessive.

The EAJA requires an award of fees and other expenses to a

prevailing party in an action against the United States “unless

the court finds that the position of the United States was

substantially justified or that special circumstances make an

award unjust.” § 2412(d)(1)(A). Substantially justified in this

context means “that its position was justified in substance or in

the main--that is, ‘justified to a degree that could satisfy a

reasonable person.’” Schock v. United States, 254 F.3d 1, 5 (1st

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2

Cir. 2001) (quoting Pierce v. Underwood, 487 U.S. 552, 565

(1988)). The Commissioner’s position is substantially justified

if the “position ‘has a reasonable basis in law and fact.’” 

Dantran, inc. v. U.S. Dep’t of Labor, 246 F.3d 36, 40 (1st Cir.

2001) (quoting Pierce, 487 U.S. at 566 n.2). The Commissioner

bears the burden of showing that her position both before and

during litigation was substantially justified. Id.

Fleming applied for social security benefits alleging a

disability due to a right shoulder injury and a right knee

injury. Following a hearing, the Administrative Law Judge

(“ALJ”) found that Fleming was entitled to a closed period of

benefits but that he improved and was not disabled after that

time. Fleming sought judicial review, asserting that the ALJ had

made a series of errors that included using the wrong DOT number,

making inconsistent findings with respect to his asserted mental

impairment, and failing to follow the procedure for finding

medical improvement. The Commissioner argued that the mistakes

were explainable and that remand was not necessary. The court

reversed and remanded the decision so that the mistakes could be

addressed through the administrative process.

In response to Fleming’s motion for an award of fees and

expenses, the Commissioner contends that her position was

substantially justified because the court agreed that the ALJ’s

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mistaken DOT number was not significant and, despite the remand,

the court found that the circumstances in the case presented a

close question between remand and affirmance. The Commissioner

points to facts in the record to support her position that

Fleming’s mental impairment was not disabling for the required

twelve month period. She also contends that the lack of

controlling authority in the First Circuit as to whether the

medical improvement standard applies to closed periods of

disability cases shows that her position was substantially

justified. She further contends that the First Circuit has since

indicated that a finding of medical improvement based on two

factors was sufficient. See Duguay v. Barnhart, 2006 WL 510783

(1st Cir. Mar. 3, 2006). Fleming asserts that the Commissioner’s

position was not substantially justified because of the many

errors made by the ALJ and because the court reversed and

remanded the decision, not finding the errors to be harmless.

“The mere fact that the government does not prevail is not

dispositive on the issue of substantial justification.” Schock, 

254 F.3d at 5. As noted above, this was a close case. The court

agrees with the Commissioner that her explanations of the ALJ’s

errors and her arguments for affirmance were substantially

justified. 

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Conclusion

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

award of fees and expenses (document no. 14) is denied.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

April 20, 2006

cc: Raymond J. Kelly, Esquire

David L. Broderick, Esquire

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