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Benedetto Rocchio v. Commissioner of Social Security

August 7, 2012

BENEDETTO ROCCHIO, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: J. Paul Oetken, District Judge

MEMORANDUM AND ORDER

Presently before the Court is the motion of Plaintiff, Benedetto Rocchio, for attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d).

For the reasons set forth below, the motion for attorney's fees is granted.

I.Background

On July 8, 2005, Plaintiff, previously represented by David Jalosky, Esq., filed an application for disability insurance benefits under Title II of the Social Security Act ("the Act"). The Administrative Law Judge ("ALJ") found that Plaintiff was not disabled within the meaning of the Act and denied Plaintiff's application on July 13, 2007. On January 25, 2008, the Appeal Council denied Plaintiff's request for review.

Plaintiff, proceeding pro se, initiated the present action in this court on April 22, 2008, seeking judicial review of the Commissioner's final decision pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). On March 12, 2009, Christopher James Bowes of the Center for Disability Advocacy Rights, Inc. entered an appearance as counsel on Plaintiff's behalf. Both Plaintiff and Defendant moved for judgment on the pleadings. On November 19, 2010, Magistrate Judge Frank Maas issued a Report and Recommendation ("Report"), which recommended that the matter be remanded "solely to develop the record more fully with respect to Rocchio's visual impairments." (Dkt. No. 23.) United States District Judge Jed S. Rakoff, to whom this matter was previously assigned, adopted the Report in its entirety on March 28, 2011. (Dkt. No. 24.)

On November 23, 2011, Plaintiff's counsel moved to be awarded attorney's fees for his time spent in connection with the federal action. Plaintiff's counsel seeks an award of $6,016.67 in attorney's fees for the 33.7 hours of work performed.

II.Legal Standard

The EAJA requires a court to award fees and costs to the prevailing party in an action against the United States "unless the court finds that the position of the United States was substantially justified or that special circumstances make the award unjust." 28 U.S.C. § 2412(d)(1)(A). The statute has four basic conditions: "(1) that the claimant be a 'prevailing party'; (2) that the Government's position was not 'substantially justified'; (3) that no 'special circumstances make an award unjust'; and, (4) pursuant to 28 U.S.C. § 2412(d)(1)(B), that any fee application be submitted to the court within 30 days of final judgment in the action and be supported by an itemized statement." Commissioner, I.N.S. v. Jean,496 U.S. 154, 158 (1990); see also Gomez-Beleno v. Holder, 644 F.3d 139, 144 (2d Cir. 2011).

Here, there is no dispute as to three of these conditions: Plaintiff is the prevailing party in the federal action; there are no special circumstances that would make an award of fees unjust; and the motion for attorney fees was timely.*fn1 The Commissioner in effect has conceded that these conditions have been satisfied. The Commissioner argues only that its position in the administrative proceedings was "substantially justified" and that hence no attorney's fees should be awarded.

A position is substantially justified if it is "justified in substance or in the main-that is, justified to a degree that could satisfy a reasonable person." Gomez-Beleno, 644 F.3d at 145 (quoting Jean, 496 U.S. at 158 n. 6). The Government bears the burden of showing that this standard has been met-i.e., that the position of the United States "'had a reasonable basis in both law and fact.'" Id. (quoting Vacchio v. Ashcroft, 404 F.3d 663, 674 (2d Cir. 2005)); see also Ericksson v. Comm'r of Soc. Sec., 557 F.3d 79, 82 (2d Cir. 2009). "Whether or not the position of the United States was substantially justified shall be determined on the basis of the record . . . which is made in the civil action for which fees and other expenses are sought." 28 U.S.C. § 2412(d)(1)(B); see also Pierce v. Underwood, 487 U.S. 552, 565 (1988).

III. No Substantial Justification

Here, the Commissioner was not substantially justified in his opposition to the federal action, or in his position in the administrative proceedings that preceded federal review.

As Magistrate Judge Maas detailed in his Report, Social Security law obligates the ALJ to ensure that the medical record is adequately developed. (See Report at 25 (citing Moran v. Asture, 569 F.3d 108, 112 (2d Cir. 2009).) Section 223(d)(5)(B) of the Social Security Act, 42 U.S.C. § 423(d)(5)(B), requires the Commissioner of Social Security to "make every reasonable effort to obtain from the individual's treating physician (or other treating health care provider) all medical evidence . . . necessary in order to properly make [any determination with respect to whether an individual is under a disability] prior to evaluating medical evidence obtained from any other source on a consultative basis." Although the ALJ noted the lack of opinion evidence from Plaintiff's treating ophthalmologist, the ALJ here did not seek to solicit an opinion from this treating physician prior to relying on the opinion of a consultative physician and denying Plaintiff's claim. (Report at 33-34.)*fn2 Magistrate Judge Maas concluded that the "failure to develop conflicting medical evidence from a treating physician is legal error requiring remand." (Id. at 27 (quoting Miller v. Barnhart, No. ...


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