* Published

ATTORNEYS’ FEES

4/3/09   Elizabeth A. Ryan v. Michael J. Astrue, Comm’r, Soc. Sec. Admin.

Case No. 08-cv-17-PB, Opinion No. 2009 DNH 047

Pursuant to 28 U.S.C. § 2412(d), the Equal Access to Justice Act (“EAJA”), Elizabeth Ryan sought an order awarding her attorney’s fees as a result of the court’s August 21, 2008 decision reversing the Commissioner’s denial of Social Security benefits and remanding to the ALJ to properly apply Social Security Ruling (“SSR”) 83-20.  The court denied Ryan’s motion.  A party is not entitled to an award of attorney’s fees under the EAJA if the position of the United States in the underlying litigation was substantially justified.  In the underlying litigation, the Commissioner had taken the position that SSR 83-20 did not apply because the ALJ denied Ryan’s claim without making a finding that she was disabled.  The court found that the Commissioner’s position in the underlying litigation was substantially justified because the caselaw reflected an ongoing debate on the issue of whether SSR 83-20 applied.  5 Pages.  Judge Paul Barbadoro.

BANKRUPTCY

4/22/09 John Locapo v. Brian Colsia et al.,

Civil No. 08-cv-414-JNL, Opinion No. 2009 DNH 057*

The defendants moved to dismiss the plaintiff’s claims against them for misrepresentations and other misconduct, arguing that, while the claims had accrued prior to the plaintiff’s bankruptcy proceeding, he had failed to list them on his schedule of assets at any time before the case closed and he was discharged from his obligations.  Given the plaintiff’s acknowledgment that he knew about the defendants’ alleged wrongdoing before that time, the court granted the motion without prejudice to the plaintiff’s attempt to reopen his bankruptcy case to schedule the claims against the defendants.  11 pages.  Judge Joseph N. Laplante.  

DEFAMATION

4/27/09 Ben’s Auto Body v. Teitelbaum, et al.

Case No. 08-cv-207-SM, Opinion No. 2009 DNH 060

In this defamation action, summary judgment was granted to the defendants where plaintiff was unable to produce any admissible evidence that the plaintiffs ever made the statements on which the defamation claim was based.  9 pages.  Chief Judge Steven J. McAuliffe.

EMPLOYMENT: ERISA

4/3/09   In re Tyco International, Ltd. Multidistrict Litigation (MDL 1335)

Case No. 02-md-1335, Opinion No. 2009 DNH 046

Plaintiffs filed a summary judgment motion arguing, inter alia, that section 404(c) of ERISA does not provide an affirmative defense to fiduciaries who are sued because of a decision to designate the investment options that are available to plan participants.   The court found that section 404(c) and the Department of Labor’s (“DOL”) implementing regulations for 404(c) are unclear as to whether section 404(c) can be used to bar a claim based on a fiduciary’s designation of investment options.  However, the court found that the DOL reasonably determined in the preamble to its regulations that losses which result from a fiduciary’s designation decision are neither a “direct” nor a “necessary” result of a participant’s exercise of control over plan assets.  The court gave deference to the DOL’s interpretation of its own regulations in its regulatory preamble, and concluded that fiduciaries are not shielded by section 404(c) from losses which result from decisions regarding designation of investment options.  The court granted the plaintiffs’ motion to the extent that it seeks a determination that defendants are not entitled to an affirmative defense under section 404(c).  To the extent that plaintiffs sought summary judgment on additional issues, the court denied their motion without prejudice. 7 Pages.  Judge Paul Barbadoro.

HABEAS CORPUS

4/3/09   Sokorelis v. NHSP Warden

Case No. 07-cv-335-SM, Opinion No. 2009 DNH 049

This habeas corpus petition was dismissed because it was filed beyond the limitations period established by the Antiterrorism and Effective Death Penalty Act, and the petitioner failed to establish that he was entitled to equitable tolling.  He established neither that he had diligently pursued habeas relief nor that he was precluded from petitioning for such relief by extraordinary circumstances.  More specifically, the petitioner’s erroneous belief that his plea agreement precluded him from seeking habeas relief was not an extraordinary circumstance that supported application of the doctrine of equitable tolling.  18 pages.  Chief Judge Steven J. McAuliffe.

SOCIAL SECURITY

4/13/09 Helen Rena Lalime v. Michael J. Astrue, Comm’r, Soc. Sec. Admin.

Case No. 08-CV-196-PB, Opinion No. 2009 DNH 053

Plaintiff Helen Lalime brought an action challenging the Commissioner of the Social Security Administration’s (the “Commissioner”) decision that she was not entitled to Social Security Benefits under Title II of the Social Security Act.  The court upheld the Commissioner’s ruling after finding that the Commissioner gave appropriate weight to the treating physician’s medical opinion, fairly assessed Lalime’s Residual Functional Capacity, and adequately evaluated Lalime’s nonexertional limitations and her credibility.  27 Pages.  Judge Paul Barbadoro.

4/13/09 Laura Magnusson v. Michael J. Astrue, Comm’r, Soc. Sec. Admin.

Case No. 08-cv-276-PB, Opinion No. 2009 DNH 054

Laura Magnusson, who is disabled, sought review of the disability onset date found by the Commissioner.  The court vacated the Commissioner’s decision and remanded the case to the Social Security Administration under sentence four of 42 U.S.C. § 405(g).  The court found that the evidence concerning the onset date of Magnusson’s disability was ambiguous and that the onset date fixed by the ALJ did not have a legitimate medical basis.  The court found that, in order to comply with the requirements of Social Security Ruling 83-20, the Administrative Law Judge should have consulted a medical advisor regarding the onset date of Magnusson’s disability.  26 Pages.  Judge Paul Barbadoro.

4/3/09   Leonard Gallagher v. Michael J. Astrue, Comm’r, Soc. Sec. Admin.

Case No. 08-cv-163-PB, Opinion No. 2009 DNH 048

Leonard Gallagher sought review of the Commissioner’s denial of his application for Social Security Disability Insurance Benefits and Supplemental Security Income.  Gallagher alleged that the Administrative Law Judge (“ALJ”) (1) mechanically applied the age category guidelines, (2) violated the requirements of SSR 96-8p in assessing his Residual Functional Capacity (“RFC”), (3) failed to properly formulate a hypothetical question to the vocational expert (“VE”), and (4) failed to ask about conflicts in the VE’s testimony.  The court granted in part Gallagher’s motion to reverse, and remanded the case to the Social Security Administration under sentence four of 42 U.S.C. § 405(g).  The court found that remand was required because the ALJ failed to consider Gallagher’s potential borderline age situation.  The court found that the ALJ properly assessed Gallagher’s RFC in accordance with the requirements of SSR 96-8p.  However, the court determined that remand was also required because the ALJ provided the VE with an inaccurate hypothetical that did not correspond with Gallagher’s limitations as found in his RFC.  The court did not consider Gallagher’s final argument regarding conflicts in the VE’s testimony because it was mooted by the need to clarify the hypothetical question to the VE.  25 Pages.  Judge Paul Barbadoro.

4/6/09   Everngam v. SSA

Case No. 08-cv-329-SM, Opinion No. 2009 DNH 050

The Commissioner’s denial of social security disability benefits was affirmed over the claimant’s argument that the ALJ incorrectly determined that he did not have the listed impairment of “disorder of the spine.”  18 pages.  Chief Judge Steven J. McAuliffe.

4/6/09   Gillis v. SSA

Case No. 08-cv-225-SM, Opinion No. 2009 DNH 051

The Commissioner’s denial of disability insurance benefits was affirmed over the claimant’s argument that the ALJ’s decision that he was capable of performing his past relevant work should be reversed because the ALJ failed to elicit enough evidence from him about his previous job and failed to call a vocational expert to provide testimony.  23 pages.  Chief Judge Steven J. McAuliffe.

4/6/09   Zyla v. SSA

Case No. 08-cv-86-SM, Opinion No. 2009 DNH 052

The Commissioner’s denial of disability insurance benefits was affirmed over arguments that the ALJ failed to give adequate weight to a treating physician’s opinion, incorrectly determined the claimant’s residual functional capacity, incorrectly determined that the claimant’s RFC qualified him to perform his past relevant work, and failed to consider his psychiatric impairments and their likely impact on his ability to engage in substantial gainful activity.  26 pages.  Chief Judge Steven J. McAuliffe.

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