United States District Court, D. Arizona
G. Campbell United States District Judge
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
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.
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.
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.
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.”).
Was Defendant's Position Substantially
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.
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).
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.
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
Did Special Circumstances Exist to Preclude an Award ...