UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Melissa Rex, on behalf of

her daughter, A.R.,

Claimant

v. Civil No. 07-cv-48-SM

Opinion No. 2009 DNH 042

Michael J. Astrue, Commissioner,

Social Security Administration,

Respondent

O R D E R

By prior order, the court vacated the Commissioner’s denial

of Melissa Rex’s application, filed on behalf of her daughter,

for children’s Supplemental Security Income Benefits, and

remanded the case for further proceedings (document no. 15) (the

“December Order”). Ms. Rex now moves for an award of attorney’s

fees and costs under the Equal Access to Justice Act (“EAJA”). 

The Commissioner opposes claimant’s motion for fees on grounds

that the government’s litigation position and agency action in

this case were both “substantially justified” within the meaning

of the EAJA. He does not, however, challenge the amount claimant

seeks to recover in fees. 

For the reasons set forth below, claimant’s motion for an

award of attorney’s fees is granted. 

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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. 

28 U.S.C. § 2412(d)(1)(A) (emphasis supplied). The EAJA is

unlike typical fee-shifting statutes, which generally authorize

an award of costs and/or reasonable attorney’s fees to a

“prevailing party.” Instead, 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, 884 F.2d

1468, 1469-70 (1st Cir. 1989) (“Under EAJA, . . . the government

must foot the legal bills of its adversaries . . . 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 Commissioner’s arguments before this court,

but also the conduct of both the administrative law judge (“ALJ”)

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in denying claimant’s application for benefits and the Appeals

Council’s decision to decline review. See 28 U.S.C. §

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.”). See also Cummings v. Sullivan, 950

F.2d 492, 497 (7th Cir. 1991); Brunel v. Commissioner, Social

Sec. Admin., 2000 WL 1815946, 2 (1st Cir. 2000). 

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, e.g., Scarborough v. Principi,

541 U.S. 401, 414 (2004) (“The burden of establishing ‘that the

position of the United States was substantially justified,’ 

§ 2412(d)(1)(A) indicates and courts uniformly have recognized,

must be shouldered by the Government.”). See also McDonald, 884

F.2d at 1475. The Supreme Court has explained that the

government carries its burden by demonstrating that 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, 487 U.S. 552, 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

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appropriateness of the contested action.” Id. at 565 (citation

and internal punctuation omitted). 

Discussion

In granting claimant’s motion to remand this matter for

further proceedings, the court concluded that the record before

the ALJ was inadequately developed. Among other things, the

court noted that: 

the ALJ was obligated to more fully develop the record

- particularly since the Childhood Disability

Evaluation form completed by the non-examining

physician, to which the ALJ ascribed “significant

weight,” transcript at 20, is so deficient as to be

worthy of little, if any, discussion. 

December Order at 9 (footnote omitted). The court also concluded

that “some of the conclusions reached by the ALJ [were] simply

unsupported by logic or reason.” Id. 

For example, in his decision, the ALJ wrote that, “The

claimant’s parent’s explanation that [A.R.’s] absence

at the hearing was because she was at school

demonstrates the claimant’s ability to function in age

appropriate activities just as any other unimpaired

child at like age.” Transcript at 20. Later, the ALJ

concluded that her presence at school “demonstrates

[A.R.’s] ability to function in a school setting.” 

Transcript at 22. The court disagrees. At most, all

one can infer from A.R.’s attendance at school is that

she was able to successfully navigate the half-mile

walk to school that day with her mother. See

Transcript at 195. It says nothing about her ability

to function well or appropriately in a school setting,

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nor does it shed any light on whether she might be

disabled within the meaning of the Act. 

Id. at 9-10 (emphasis supplied). 

Finally, the court concluded that the differential

diagnostic report prepared by Dr. Fitzgerald, while not

conclusive evidence of A.R.’s disability, unmistakably suggested

the need for additional testing. Id. at 10. 

Among other things, Dr. Fitzgerald concluded that,

given the results of his testing, there were

“suggestions of learning disability issues [] across

Verbal Comprehension, Perceptual Reasoning, Working

Memory, and Processing Speed areas.” Transcript at

128. He also noted that it “would be helpful to make

sure that there are no significant difficulties with

hearing or vision that might be contributing to

[A.R.’s] learning problems.” Ultimately, Dr.

Fitzgerald concluded that: 

There is every indication that [A.R.] has an ADHD

substrate. It would be beneficial for her parents

to talk with Mr. Jacobson about the possibility of

a trial on stimulant medication to see if that

helps [A.R.] function more effectively. However,

it is also important to rule out any hearing or

vision issues, and to further explore the ocular

motor difficulties (lazy eye), for which she has

already been treated. There were also indications

of language processing difficulties, particularly

receptive language, visual perceptual motor

difficulties, and reading difficulties that

require further specialized assessment from the

speech and language specialist, occupational

therapist, and reading teacher, respectively. 

[A.R.] shows a profile with several co-occurring

issues. They all need to be fully assessed and

treated for [A.R.] to function successfully. 

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Id. at 10-11 (quoting administrative transcript at 129-30)

(emphasis supplied in December Order). 

To be sure, the Commissioner’s arguments before this court

in support of the ALJ’s adverse disability determination were

cogent and well-supported. That does not, however, compel the

conclusion that the government’s position throughout this process

was “substantially justified.” In fact, in light of the record

presented to this court on appeal, and the conclusions set forth

in its December Order, the court is constrained to concluded the

ALJ’s failure to more fully develop the administrative record (as

is his obligation), as well as the Appeals Council’s decision to

decline review, were not substantially justified.

Given the claimant’s modest means, the sparse nature of the

medical record presented to the ALJ, and the unequivocal opinion

of Dr. Fitzgerald that further testing of A.R. was in order, the

government had an obvious obligation to more fully develop that

record before ruling on the merits of claimant’s application. As

the Supreme Court has observed: 

The differences between courts and agencies are nowhere

more pronounced than in Social Security proceedings. 

Although many agency systems of adjudication are based

to a significant extent on the judicial model of

decisionmaking, the SSA is perhaps the best example of

an agency that is not. Social Security proceedings are

inquisitorial rather than adversarial. It is the ALJ’s

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duty to investigate the facts and develop the arguments

both for and against granting benefits, and the

Council’s review is similarly broad. 

Sims v. Apfel, 530 U.S. 103, 110-11 (2000) (citations and

internal punctuation omitted). See also Evangelista v. Secretary

of Health & Human Services, 826 F.2d 136, 142 (1st Cir. 1987);

Currier v. Secretary of Health, Educ. & Welfare, 612 F.2d 594,

598 (1st Cir. 1980). See generally 404 C.F.R. § 404.1545(a)(3)

(“[B]efore we make a determination that you are not disabled, we

are responsible for developing your complete medical history,

including arranging for a consultative examination(s) if

necessary, and making every reasonable effort to help you get

medical reports from your own medical sources.”). 

Finally, it is probably worth addressing one argument

advanced in the Commissioner’s opposition. The Commissioner

points out that, in the December Order, the court recognized that

“there is not a great deal of evidence in the record to support

the conclusion that A.R. is disabled (that is ‘extremely’ limited

in one domain of functioning or ‘markedly’ limited in two).”

December Order at 9. Based upon that observation, the

Commissioner argues that, when the evidence of disability is very

close or even in equipoise, the government’s position (in

opposition to an award of benefits) is, at least in the typical

case, “substantially justified.” 

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But, as the court pointed out in the December Order, the

question was not whether there was substantial evidence to

support the claimant’s position, but rather whether the ALJ

should have recognized the need to augment the (sparse) existing

record by, for example, ordering the additional tests suggested

by Dr. Fitzgerald. He did not. So, while the Commissioner may

be correct in asserting that claimant failed to meet her burden

of proof before the ALJ (this court never resolved that issue),

it is not dispositive of her request for fees. The court did not

remand the matter based upon a perceived error in the way the ALJ

weighed the available evidence. Instead, it remanded the matter

because the ALJ (and the Appeals Council) committed a substantial

error by failing to recognize the obvious need to supplement

A.R.’s medical record, so a truly informed response might be

provided to her application for Social Security benefits. That

error tainted the entire process of reviewing claimant’s

application and formed the basis of this court’s decision to

remand the matter for further proceedings. 

Conclusion

In light of the foregoing, the court concludes that the

Commissioner has failed to carry his burden of demonstrating that

his position throughout this process was “substantially

justified.” See 28 U.S.C. § 2412. Claimant is, then, entitled

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an award of reasonable attorney’s fees. As noted above, the

Commissioner does not challenge the amount claimant requests;

rather, he challenges only her legal entitlement to those fees. 

Accordingly, claimant’s initial request for fees (document no.

17), as well as her supplemental request for fees (document no.

23) are granted. 

The Clerk of Court shall enter an amended judgment in

accordance with this order and close the case. 

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

March 31, 2009

cc: Francis M. Jackson, Esq.

Karen B. Fitzmaurice, Esq.

Robert J. Rabuck,Esq.

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