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Carol Miles O/B/O J.M v. Michael J. Astrue

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


October 3, 2011

CAROL MILES O/B/O J.M., PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge

MEMORANDUM OPINION

Plaintiff Carol Miles brought this action pursuant to section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Commissioner of Social Security (the "Commissioner") denying her son's claim for supplemental security income ("SSI") benefits. The parties consented to have this matter decided by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). In an Opinion and Order dated April 8, 2011, the Court remanded the case for the calculation of benefits. See Miles ex rel. J.M. v. Astrue, 775 F. Supp. 2d 715 (S.D.N.Y. 2011).

Plaintiff has now made an application for attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(A). That statute provides in pertinent part that: a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action (other than cases sounding in tort) . . . unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

As the Second Circuit has summarized:

The Commissioner bears the burden of showing that his position was "substantially justified," which the Supreme Court has construed to mean "justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565, 108 S. Ct. 2541, 101 L. Ed. 2d 490 (1988). To make this showing, the Commissioner must demonstrate that his position had a

Copies sent to: Michael Dougherty Hampden Partnership for Children's Rights 271 Madison Avenue, 17th Floor New York , NY 10016 Susan D. Baird Assistant United States Attorney 86 Chambers Street, 3rd Floor New York, NY 10007

20111003

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