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David R. Dobson v. Commissioner of Social Security

November 19, 2012

DAVID R. DOBSON, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Presently pending before the court is plaintiff's motion for fees and costs, originally filed on September 25, 2012, and noticed for hearing on November 15, 2012. (Dkt. No. 36.)*fn1 On October 23, 2012, the Commissioner filed an opposition to plaintiff's motion and a request that the matter be submitted on the briefing. (Dkt. No. 37.) Subsequently, on October 25, 2012, after having reviewed the papers submitted, the court determined that oral argument would not be of material assistance in resolving the motion and vacated the November 15, 2012 hearing. (Dkt. No. 38.) The court provided plaintiff with an opportunity to file a reply brief no later than November 8, 2012, after which the motion was to be submitted on the record. (Id.)

Plaintiff did not file a reply brief.

After considering the parties' briefing and appropriate portions of the record, and for the reasons discussed below, the court denies plaintiff's motion for fees and costs.

BACKGROUND

In June 2006, plaintiff filed applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI, respectively, of the Social Security Act ("Act"), alleging a disability onset date of August 1, 2005. (See Administrative Transcript ["AT"] 72-80.) Plaintiff's claim of disability was based on his condition of type 1 diabetes mellitus, with complications of peripheral neuropathy and peripheral retinopathy. On May 22, 2008, Administrative Law Judge ("ALJ") Mark C. Ramsey issued a decision (the "First Decision") finding that plaintiff was not disabled from August 1, 2005, through May 22, 2008. (AT 12-21.) When that administrative decision became final, plaintiff commenced this action for judicial review.

In the meantime, plaintiff also filed new applications for DIB and SSI in July 2008. (Dkt. No. 25-2 at 1.) On February 19, 2010, another ALJ issued a notice of a fully favorable decision (the "Second Decision") finding plaintiff to be disabled as of May 23, 2008 (the day after the date of the First Decision). (Id.) That notice stated, in part:

I announced the basis for my decision at the hearing held on February 12, 2010. I adopt here those findings of fact and reasons. To summarize briefly, I found you disabled as of May 23, 2008 because the symptoms of your brittle diabetes mellitus type I with retinopathy and neuropathy and severe bilateral lower extremity arterial disease and amputation of the left leg below the knee are so severe that your impairment meets the requirements of one of the impairments listed in the Listing of Impairments.

(Id.)

Thereafter, on August 8, 2010, plaintiff filed a declaration in the instant action, which attached exhibits consisting of the Second Decision and the more recent medical evidence that supported his July 2008 applications. (See Declaration of Andrew P. Ragnes, Dkt. No. 25.)

The "new and material exhibits," which had been presented to the ALJ who authored the Second Decision, consisted of a December 22, 2008 eye exam; an April 17, 2009 eye exam; medical records dated between April 8 and April 23, 2009; and a state agency physician case analysis dated February 23, 2009. (Dkt. No. 25, ¶ 8, Exs. C-F.)

On August 24, 2010, plaintiff filed a motion to remand the action under sentence six of 42 U.S.C. § 405(g) to consider the more recent evidence and to reconcile an alleged inconsistency between the First and Second Decisions; in particular, the Second Decision's finding that plaintiff was disabled as of the day after the date of the First Decision finding plaintiff not disabled. (Dkt. No. 29.) The Commissioner filed an opposition to that motion. (Dkt. No. 30.) On November 5, 2010, the court granted plaintiff's motion for a remand pursuant to sentence six of 42 U.S.C. § 405(g). (Dkt. No. 31.) Following remand, on June 21, 2011, ALJ Mary M. French ultimately issued a fully favorable decision finding that plaintiff had been disabled as of August 1, 2005. (See Dkt. No. 32-1.) Thereafter, on June 29, 2012, consistent with the fully favorable decision, this court entered judgment for plaintiff. (Dkt. Nos. 33, 34.) Plaintiff's instant motion for fees and costs followed.

DISCUSSION

Liberally construed, plaintiff's motion requests fees and costs under both the Equal Access to Justice Act ("EAJA") and under 42 U.S.C. ยง 406(b). Each statutory ...


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