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Allen v. Astrue

May 29, 2009

DARLENE ALLEN, PLAINTIFF,
v.
MICHAEL J. ASTRUE*FN1, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Darlene Allen moves for an award of attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. (Dkt. No. 17). The Commissioner opposes plaintiff's motion on the grounds that the decision was substantially justified and further, that the amount of fees requested is excessive. (Dkt. No. 18).

II. BACKGROUND AND PROCEDURAL HISTORY

Familiarity with the history in the case is assumed based on this Court's previous Memorandum-Decision and Order. See Allen v. Astrue, 05-CV-0101, Dkt. No. 15 (March 10, 2008) (Memorandum-Decision and Order). On February 28, 2002, plaintiff filed an application for Supplemental Security Income ("SSI"). (T. 41)*fn2 . Plaintiff's application was denied and an administrative hearing was held before an ALJ. (T. 23-25; 26; 255-296). On May 20, 2003, the ALJ issued a decision denying plaintiff's claim for benefits. (T. 14-18). On January 7, 2005, the Appeals Council denied plaintiff's request for review, making the ALJ's decision the final determination of the Commissioner. (T. 4-6). On January 27, 2005, plaintiff brought the above-captioned action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) of the Social Security Act, seeking review of the Commissioner of Social Security's decision to deny her application for SSI benefits. (Dkt. No. 1). Both parties moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Dkt. Nos. 7, 8). This matter was referred to United States Magistrate Judge Gustave DiBianco for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(d).

On December 14, 2006, Magistrate Judge DiBianco recommended that this Court enter judgment on the pleadings affirming the Commissioner's decision denying disability and dismissing plaintiff's claims. (Dkt. No. 9). On December 29, 2006, plaintiff objected to the Report-Recommendation on four grounds: (1) the ALJ did not appropriately weigh the opinion of plaintiff's treating therapist; (2) the ALJ erred by not complying with the mandates of Social Security Ruling 00-4p; (3) the ALJ erroneously relied upon the testimony of a vocational expert because the hypothetical questions to the vocational expert did not conform to his ultimate determination of plaintiff's residual functional capacity; and (4) the ALJ did not apply the appropriate legal standard in assessing plaintiff's credibility. (Dkt. No. 10).

On March 10, 2008, after considering the Report-Recommendation and plaintiff's objections, this Court adopted the Report-Recommendation in part and rejected the Report-Recommendation in part and remanded the case for further proceedings. (Dkt. No. 15, pp. 21-22). This Court remanded the matter to the Commissioner for an evaluation of plaintiff's treating therapist's opinion and its impact, if any, upon the determination of plaintiff's mental residual functional capacity. (Dkt. No. 15, p. 15). This Court further remanded the case for a proper determination of plaintiff's credibility with specific findings based upon substantial evidence. (Dkt. No. 15, p. 21). On April 28, 2008, plaintiff filed the within motion seeking attorney's fees in the sum of $9,533.38. (Dkt. No. 17).

III. DISCUSSION

The EAJA provides:

[A] court shall award to a prevailing party . . . 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). In order for a party to be awarded attorney's fees under the EAJA, the plaintiff must demonstrate that he or she: 1) is the prevailing party; 2) eligible to receive an award; 3) enumerate the amount sought; 4) show the rate at which fees were computed; and 5) allege that the position of the United States was not substantially justified. See § 2412(d)(1)(B). However, even if an agency's position was not substantially justified, an award of fees may be denied or reduced pursuant to EAJA if "special circumstances" would make an otherwise proper award "unjust". Ortiz v. Chater, 1997 WL 50217, at *4 (E.D.N.Y. 1997) (citing 28 U.S.C. § 2412(d)(1)(A)). Although the statute does not define the key terms "special circumstances" and "unjust", the Second Circuit has held that equitable considerations should inform a court's decision in this area. Id. (citing Oguachuba v. INS, 706 F.2d 93, 98 (2d Cir. 1983)).

In this case, plaintiff claims that an EAJA award is available as: (1) plaintiff's net worth did not exceed $2,000,000 at the time the action was filed; (2) plaintiff was a "prevailing party" in a case against the government; and (3) the position of the United States was not substantially justified.*fn3 (Dkt. No. 16, pp. 3-4). The Commissioner asserts: (1) the ALJ's decision was substantially justified within the meaning of the EAJA; and (2) even if the Court finds that an award of attorney's fees is appropriate, plaintiff's fee request is excessive. (Dkt. No. 18).

A. Substantial Justification

Courts have held that the substantially ...


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