The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge
Plaintiff Jay Bagley ("Bagley") moves for an award of attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. The Commissioner opposes Bagley's motion on grounds that special circumstances make an award of attorney's fees unjust. For the reasons that follow, Bagley's motion for attorney's fees is granted.
On July 20, 1999, Bagley was notified by the Social Security Administration that his period of disability - arising out of bilateral carpal tunnel syndrome and a verbal scale IQ of 67 - ceased as of July of 1999. Correspondingly, he was informed that his disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") would be terminated as of September of 1999. This determination was affirmed by an ALJ decision dated February 7, 2001. This became the Commissioner's final decision when the Appeals Council denied Bagley's request for review by notice dated January 18, 2002.
Bagley then brought this action pursuant to 42 U.S.C. § 405(g), seeking review of the Commissioner's decision. As relevant to the current motion, Bagley argued that, in reviewing his termination of benefits, the Administrative Law Judge ("ALJ") erred under 20 C.F.R. § 404.1594(b)(5) by only considering evidence of his disability which existed when his period of disability was found to have ceased in July of 1999. In this vein it was contended that the ALJ should have considered evidence of Bagley's back impairments arising out of car accidents in September of 1999 and February of 2000.
On March 16, 2006, this court issued a Decision and Order affirming the Commissioner's decision. Bagley timely appealed to the Second Circuit and both parties submitted briefing. Bagley reiterated the above argument under 20 C.F.R. § 416.994. On December 13, 2007, the Circuit requested supplemental briefing from the parties as to the effect of Nieves v. Barnhart, No. 02 Civ. 9207, 2005 WL 668788 (S.D.N.Y. Mar. 23, 2005) ("Nieves II"); 20 C.F.R. § 416.305(b)(5); 20 C.F.R. § 416.1476 and 52 Fed. Reg. 4001, 4003 (1987) on the case. The combined import of these authorities is that the existence of a plaintiff's disability in SSI cessation cases must be considered based on all evidence presented throughout the administrative appeals process, not merely as of the initial cessation date.
Apparently realizing the significance of the authorities the Circuit requested briefing on, the parties engaged in negotiation which ultimately led to the Commissioner's agreement to remand the case solely to calculate benefits. A stipulation and order of dismissal was entered on February 12, 2008.
Currently pending before the court is Bagley's motion for attorney's fees under the EAJA and the government's objection to such an award on grounds that "special circumstances" make such an award unjust.
In pertinent part, the EAJA provides:
[A] court shall award  to a prevailing party ... fees and other expenses, ... incurred by that party in any civil 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).