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Abdullah v. Social Security Administration Commissioner

United States District Court, D. Arizona

November 16, 2016

Abdulbasit Abdullah, Plaintiff,
v.
Social Security Administration Commissioner, Defendant.

          ORDER

          David G. Campbell United States District Judge

         Plaintiff has filed a motion for attorney's fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). The motion is fully briefed and no party has requested oral argument. The Court will grant Plaintiff's motion.

         I. Background.

         Plaintiff applied for disability and supplemental security insurance benefits on March 5, 2010, alleging disability beginning January 1, 2007. Doc. 15 at 2. After a hearing on October 14, 2011, an administrative law judge (“ALJ”) issued an opinion on November 4, 2011, finding Plaintiff not disabled. A request for review was denied by the Appeals Council and the ALJ's opinion became the Commissioner's final decision on September 4, 2013. Doc. 15 at 2.

         Plaintiff filed a complaint with this Court asking for review of the Commissioner's decision. Doc. 1. On January 22, 2014, Plaintiff filed its opening brief, as well as a motion to supplement the record with additional evidence he had already submitted to the Appeals Council in 2012, including an assessment from Dr. Geary. Docs. 30 at 2; 14.

         Defendant acknowledged that these records had not been addressed by the Appeals Council and were relevant to the outcome of Plaintiff's case. Doc. 30 at 2-3. As a result, Defendant filed a motion to remand on February 5, 2014. Doc. 16. Plaintiff opposed this motion, arguing that remand was unnecessary and instead seeking a final decision that he was entitled to benefits. Doc. 18. Because this Court found that there were several outstanding issues requiring resolution before a determination of disability could be made, the Court remanded the case for further proceedings. Doc. 20 at 3. Plaintiff now seeks to recover costs and attorney's fees for legal work performed through the time Plaintiff's counsel was able to confer with him and confirm in writing Defendant's offer to remand. Doc. 29 at 5.

         II. Legal Standard.

         Under the EAJA, the Court must award attorney's fees to a prevailing party unless the United States shows that its position was “substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A); see Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir.2001); Flores v. Shalala, 49 F.3d 562, 567 (9th Cir.1995) (“The EAJA creates a presumption that fees will be awarded to prevailing parties.”). In this case, Plaintiff is a prevailing party because the final administrative judgment denying his application for benefits was reversed and remanded for further consideration. Gutierrez, 274 F.3d at 1257 (“An applicant for disability benefits becomes a prevailing party for purposes of the EAJA if the denial of her benefits is reversed and remanded regardless of whether disability benefits ultimately are awarded.”).

         III. Was Defendant's Position Substantially Justified?

         Defendant argues that Plaintiff should be denied costs and attorney's fees because the Commissioner's initial defense of this case, before seeking remand, was substantially justified based on the information available to her at the time. Doc. 30 at 4. Defendant also argues that Plaintiff did not act with reasonable diligence when he submitted the records in question to the Appeals Council on May 21, 2012, a month after the deadline set by the Appeals Council. Id. at 7-8.

         The Supreme Court has held that a position may be substantially justified “if it has a reasonable basis in fact and law.” Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988). When determining whether the government's position was substantially justified, the Court considers “both the government's litigation position and the underlying agency action giving rise to the civil action.” Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013).

         According to Defendant, “[w]ithin two weeks of the Plaintiff's filing of evidence showing that he had previously submitted Dr. Geary's record to the Appeals Council, the Commissioner filed a motion voluntarily seeking remand to address Dr. Geary's records.” Id. at 7. But Plaintiff brought to Defendant's attention on December 30, 2013 the absence of Dr. Geary's medical reports in the administrative record. Doc. 31-2. Plaintiff asked Defendant to stipulate that he could supplement the record with these documents. Id. Defendant indicated that it needed time to investigate the record and confirm that it was incomplete. Id. Plaintiff sought an unopposed motion, at the suggestion of Defendant, for an extension of time to file its opening brief while Defendant was investigating. Doc. 12. The parties engaged in several weeks of email correspondence concerning Plaintiff's efforts to supplement the record. Id. at 1-7. Noting that Defendant had not reached any conclusions about the status of the record or provided any response to Plaintiff's request to supplement, Plaintiff informed Defendant that it would file the motion to supplement and the opening brief. Doc. 31-2 at 1. The motion and brief were filed on January 22, 2014 (Docs. 14; 15), and Defendant responded with a motion to remand, based on Dr. Geary's unconsidered reports, on February 5, 2014. Doc. 16. Thus, the question is whether Defendant's continued opposition to Plaintiff's claim, despite being advised that the Appeals Council had failed to consider relevant evidentiary reports, was substantially justified. The Court finds that it was not.

         Defendant was informed of the missing reports by Plaintiff in late December. It provides no justification for continuing to oppose Plaintiff's claim until February. Nor does it provide any evidence that the Appeals Council was justified in its failure to consider Dr. Geary's reports or its ultimate denial of Plaintiff's claim, as will be further discussed below.

         IV. Did Special Circumstances Exist to Preclude an Award ...


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