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Benson v. Astrue

United States District Court, Second Circuit

April 29, 2013

LEON BENSON, Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security Defendant.

REPORT AND RECOMMENDATION

RONALD L. ELLIS, Magistrate Judge.

I. INTRODUCTION

Plaintiff Leon Benson ("Benson") commenced this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to challenge the final decision of Defendant Michael Astrue, Commissioner of the Social Security Administration ("Commissioner") denying his application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) benefits. On September 7, 2011, this Court issued a Report and Recommendation ("Report") recommending remand to the Administrative Law Judge ("ALJ") for further administrative proceedings, including the proper evaluation of Benson's treating physician's opinion; proper explanation of the weight given to Benson's treating physician's opinions; reconsideration of Benson's subjective complaints in light of his treating physician's opinions; and comprehensive reconsideration of Benson's case as a whole. By Order dated September 30, 2011 ("Order"). United States District Judge John G. Koehl adopted the Report and Recommendation in its entirety. Benson timely moved for attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. The Government opposed the motion. For the reasons set forth below, I recommend that the fee application be GRANTED.

II. BACKGROUND

The facts of this case were set forth in the Court's Order and need not be repeated at length here. Benson applied for DIB and SSI benefits, and his application was denied on May 9, 2008. (Mem. of Law in Supp. of Pl.'s Mot. for Att'y Fees ("Pl.'s Mem.") at 3.) Following a hearing, ALJ Mark Hecht denied Benson's claims, finding that he retained the functional capacity to perform sedentary work that did not require exposure to respiratory irritants or temperature and humidity extremes. ( Id. ) On September 24, 2009, the Appeals Council refused to review the ALJ's decision, thus rendering the decision final. ( Id. ) Benson commenced this civil action pursuant to 42 U.S.C. § 405(g) to challenge the Commissioner's final decision, [1] and on October 6, 2009, moved for a judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. ( Id. ) On September 30, 2011, the Court granted Benson's application for judgment on the pleadings and remanded the case for further proceedings. Benson now seeks a fee award of $7, 799, based on 43.05 hours of work on this case. ( Id. at 1, Ex. A.)

III. DISCUSSION

A. An Award of Attorney's Fees Under the EAJA

To qualify for an award of attorney's fees under the EAJA, a claimant must demonstrate that: (1) he is a "prevailing party;" (2) the Government's position in the underlying action was not "substantially justified:" (3) no "special circumstances" make the award of fees unjust; and (4) the fee application was submitted to the court within 30 days of the final judgment in the action. 28 U.S.C.A. § 2412(d)(1)(A). Components (3) and (4) are not at issue in the current application.

Benson is a Prevailing Party

Under the EAJA, a party need not be awarded the ultimate relief sought to be considered the prevailing party for attorney's fees purposes. McGill v. Sec'y of Health & Human Serv., 712 F.2d 28, 31 (2d Cir. 1983) ( quoting from Hanrahan v. Hampton, 446 U.S. 754, 756-57 (1980)). Fee awards are appropriate where a party has established his entitlement to some relief on the merits of his claims. 28 U.S.C.A. § 2412(d)(1)(A). Benson brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the final decision by the Commissioner. On September 30, 2011, the Court granted Benson's application for judgment on the pleadings and remanded the case under the fourth sentence of 42 U.S.C. § 405(g) for further administrative proceedings. The adoption of the Report and Recommendation was a final judgment that qualifies Benson for prevailing party status. See Shalala v. Schaefer, 509 U.S. 292, 302 (1993). Benson obtained a remand for further administrative proceedings requiring the ALJ to fully explain his reasons for rejecting Benson's treating physician's opinions. (Order at 1.)

2. The Commissioner's Position Was Not Substantially Justified

A court shall award attorney's fees under the EAJA "unless the court finds that the position of the United States was substantially justified." Pierce v. Underwood, 487 U.S. 552, 559 (1988) (quoting 28 U.S.C. § 2412(d)(1)(A)). The test for determining whether a position is "substantially justified" is one of reasonableness, and the Government has the burden of demonstrating reasonableness by a "strong showing." Cohen v. Bowen, 837 F.2d 582, 585 (2d Cir. 1988) ( quoting Envtl Def. Fund, Inc. v. Watt, 722 F.2d 1081, 1085 (2d Cir.1983)). The Commissioner's position can be justified even though it is not correct, and it can be substantially justified if a reasonable person could think it correct or having a reasonable basis both in law and fact. Pierce, 487 U.S. at 565 (1988). Where the government can show that its case had a reasonable basis both in law and fact, no award will be made. Id. at 579.

The Government must show that its position was substantially justified as to the issue upon which this Court remanded. See Maxey v. Chater, No. 93-CV-606 (RSP/GJD), 1996 WL 492906, at *3 (N.D.N.Y. Aug. 28, 1996). While there are various factors that may be considered in determining whether the position of the United States was substantially justified, if the case turns on a question of law, the government can show that its position was substantially justified even if its legal argument is ultimately rejected, if it can show that the question was close or unsettled. Lugo v. Astrue, No. 11 Cv 6028 (CJS), 2012 WL 4026848, at *3 (W.D.N.Y. Sept. 12, 2012).

In its prior Report and Recommendation, this Court found that the All considered Benson's non-exertional impairments, and properly declined to call a vocational expert. (Report at 20-22.) The Court also found that the AUJ properly addressed Benson's residual functional capacity for sedentary work, including a function-by-function analysis of Benson's abilities. ( Id. at 25.) The basis for the recommendation to remand was the failure of the ALJ to fully explain his reasoning for rejecting treating physician Dr. Dassa's finding of total disability. (Order at 1; see Report at 26.) Specifically, the ALJ did not refer to Dr. Dassa by name, and never recognized Dr. Dassa as Benson's treating physician. (Administrative ...


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