TOBELER

Filing 41

ORDER DENYING plaintiff's 32 Motion for Attorney Fees. Signed by Judge Edward C. Reed, Jr on 4/16/2012. (Copies have been distributed pursuant to the NEF - MLC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
RENO, NEVADA

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CRAIG TOBELER,
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Plaintiff,
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vs.
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MICHAEL J. ASTRUE, Commissioner
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Defendant.

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3:09-cv-00309-ECR-RAM

Order

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On April 12, 2011, the Court entered an Order (#29) remanding
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the action for consideration of lay witness testimony.

On May 19,

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2011, Plaintiff filed a Motion for Attorney’s Fees (#32) pursuant to
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the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412,
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requesting EAJA fees in the amount of $8,033.52.
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On July 5, 2011, Defendant opposed (#35) the request for EAJA
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fees on the basis that the government’s position was substantially
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justified.

In the event that fees are granted, Defendant argues

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that Plaintiff’s requested fees are excessive.

A party is entitled

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to EAJA fees unless the court finds that the position of the United
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States was substantially justified or that special circumstances
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make an award unjust.

28 U.S.C. § 2412(d)(1).

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In this case, we remanded the action because the ALJ failed to

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address lay witness testimony that corroborated Plaintiff’s statements,

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1 which the ALJ found to be uncredible.

Defendant argues that the

2 Plaintiff’s wife’s lay witness report concerned a period after the
3 relevant disability period in this case.

Plaintiff’s employer’s lay

4 witness report did not give specific times and dates, and therefore may
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The case was remanded because of the heightened

7 harmless error standard when lay witness testimony is not addressed by the
8 ALJ, but under the circumstances, we cannot find that the government’s
9 position was not substantially justified.

While Plaintiff prevailed on

10 the issue of lay witness testimony, the remainder of the ALJ’s conclusions
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IT IS, THEREFORE, HEREBY ORDERED that Plaintiff’s Motion for Fees

13 (#32) is DENIED.
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15 DATED: April 16, 2012.
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UNITED STATES DISTRICT JUDGE

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