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RICE v. APFEL

September 2, 1998

EDWARD RICE, Plaintiff,
v.
KENNETH S. APFEL, Commissioner of the Social Security Administration, Defendant.



The opinion of the court was delivered by: LEVIN

MEMORANDUM OPINION AND ORDER

 Plaintiff Edward Rice filed suit seeking review of a final decision issued by the Commissioner of the Social Security Administration (the "Commissioner"), pursuant to 42 U.S.C. § 405(g). Plaintiff moved for summary judgment or alternatively, for remand, to the Commissioner for further administrative proceedings. This court denied Plaintiff's motion for summary judgment, but granted Plaintiff's request for remand. Plaintiff now petitions this court to recover attorney's fees pursuant to the Equal Access to Justice Act. 28 U.S.C. 2412(d)(1)(A). For the reasons set forth below, this court grants Plaintiff's motion for attorney's fees in the amount of $ 7,855.00.

 BACKGROUND

 In 1994, Plaintiff protectively filed for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB"). Plaintiff's applications, and timely request for reconsideration, were denied by the Commissioner. (R. 23, 119-26, 128-30, 193, 194.) Upon Plaintiff's timely request (R. 131), a hearing was held -- wherein Plaintiff was represented by an attorney -- before an Administrative Law Judge (the "ALJ") on September 29, 1995. (R. 46-97.)

 On February 23, 1996, the ALJ entered her decision. (R. 19-30.) The ALJ found that Plaintiff met the disability insured status requirements from December 30, 1989 until March 31, 1993. (R. 28.) Prior to March 31, 1993, the ALJ found that Plaintiff was not disabled. (R. 29.) The ALJ found that, during that time, Plaintiff was not precluded from performing his past relevant work as a medical technician. (R. 29.)

 The ALJ further found that, beginning November 8, 1993, Plaintiff had a disability in that Plaintiff's asthma met the requirements of § 3.03B of the Listing of Impairments in Appendix I, Subpart P of the regulations. (R. 29.) The ALJ found that, as of December 7, 1994, the medical evidence established that Plaintiff's medical condition had improved and that Plaintiff had the residual functional capacity to perform the physical exertion requirements of medium work that did not involve exposure to significant amounts of pulmonary irritants. (R. 29.) The ALJ stated that Plaintiff could, as of December 7, 1994, perform his past relevant work as a medical technician. (R. 29.) *fn1"

 On April 9, 1997, the ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review. (R. 4.) Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), Plaintiff, then, initiated civil action for judicial review of the Commissioner's final decision.

 On May 21, 1998, this court granted Plaintiff's motion for remand holding, essentially, that (1) the ALJ failed to comply with the requirements of SSR 83-20 (including not seeking the services of a medical advisor to assist in making the inferred onset-of-disability date determination) and (2) the Appeals Council committed legal error in failing to consider Dr. Hosan's medical report where this new evidence was clearly material and clearly related to the period on or before the date of the ALJ's hearing decision.

 LEGAL STANDARD

 Plaintiff seeks recovery of reasonable attorney's fees under the Equal Access to Justice Act (the "EAJA"). 28 U.S.C. § 2412(d)(1)(A). The EAJA states:

 
a court shall award to a prevailing party . . . fees and other expenses . . . incurred by that party in any civil action (other than cases sounding in tort), 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).

 A court may award attorney's fees under § 2412(d)(1)(A) of the EAJA if: (1) the claimant is a "prevailing party," (2) the Government's position was not "substantially justified," (3) no "special circumstances make an award unjust," and (4) the fee application is timely filed (pursuant to 28 U.S.C. § 2412(d)(1)(B), within 30 days of final judgement in the action and supported by an itemized statement. Commissioner, I.N.S. v. Jean, 496 U.S. 154, 158, 110 L. Ed. 2d 134, 110 S. Ct. 2316 (1990). Here, the government argues that: (1) its position was ...


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