                      UNITED STATES COURT OF APPEALS
Filed 1/24/97
                             FOR THE TENTH CIRCUIT



    RANDOLF T. OTT,

                Plaintiff-Appellant,

    v.                                                    No. 96-3163
                                                    (D.C. No. 94-4235-DES)
    SHIRLEY S. CHATER, Commissioner                        (D. Kan.)
    of Social Security, *

                Defendant-Appellee.


                             ORDER AND JUDGMENT **


Before PORFILIO, BALDOCK, and HENRY, Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

*
      Effective March 31, 1995, the functions of the Secretary of Health and
Human Services in social security cases were transferred to the Commissioner of
Social Security. P.L. No. 103-296. In the text we to refer to the Secretary
because she was the appropriate party at the time of the underlying decision.
**
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Claimant Randolf T. Ott appeals the district court’s order denying his

request for attorney fees made pursuant to the Equal Access to Justice Act

(EAJA), 28 U.S.C. § 2412, following the district court’s remand of his action for

social security disability benefits under sentence four of 42 U.S.C. § 405(g).

Claimant has abandoned on appeal his argument that the district court should have

awarded fees pursuant to 42 U.S.C. § 406(b)(1)(A). We reverse and remand to

the district court for determination of the appropriate fee.

                                     Background

      Claimant filed for disability insurance benefits alleging he became disabled

by post-traumatic stress syndrome caused by his tour of duty in Vietnam from

1965 to 1969. He claimed that he was totally disabled prior to the expiration of

his insured status on December 31, 1989. On August 11, 1993, he wrote a letter

requesting the presence of a medical advisor at the administrative hearing and

renewed his request at the hearing. An Administrative Law Judge (ALJ) denied

benefits after a hearing, concluding that claimant could return to his past work

prior to December 31, 1989. The Appeals Council denied review. The district

court concluded that the medical evidence was ambiguous, and remanded for

further administrative proceedings, directing that a medical adviser be called to

testify regarding the onset date of claimant’s disability, as required by Social

Security Ruling 83-20 (SSR 83-20).


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      Claimant then sought fees under the EAJA, which provides for an award of

attorney fees “unless the court finds that the position of the United States was

substantially justified or that special circumstances make an award unjust.”

Section 2412(d)(1)(A). There is no dispute that claimant is a “prevailing party”

for purposes of the EAJA. The government’s position is “substantially justified”

if it has a reasonable basis in law and fact. Pierce v. Underwood, 487 U.S. 552,

565 (1988). “We review the district court’s determination of whether the

government’s position was substantially justified for abuse of discretion.” Gilbert

v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995). The government bears the

burden of proving its position was substantially justified. Id.

                                     Discussion

      On appeal, claimant asserts that the government’s position was not

substantially justified because the ALJ denied claimant’s requests for a medical

advisor to testify at the administrative hearing regarding the onset date of

claimant’s disabling condition. He argues that SSR 83-20 required the ALJ to

call a medical advisor because the onset date of claimant’s disability had to be

inferred. He further claims that the government compounded the ALJ’s errors by

opposing his appeals to the Appeals Council and the district court.

      In denying claimant’s motion for fees, the district court ruled that “[a]

reasonable person could have adduced from the evidence which was before the


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ALJ that the [claimant] did not become disabled until after 1989,” and therefore

the government’s position was substantially justified. District court’s Feb. 23,

1996 order at 6-7. The district court’s earlier order, however, remanded the case

for further administrative proceedings on the ground that the ALJ had failed to

call a medical advisor to testify at the hearing, pursuant to SSR 83-20.

       The issue was not whether a reasonable person could have determined that

claimant was not disabled until after 1989. Rather, the issue was whether the

government met its burden to show that it was substantially justified in not calling

a medical advisor under the circumstances. See Goatcher v. Chater, 57 F.3d 980,

981 (10th Cir. 1995) (“In a suit challenging the denial of social security disability

benefits, it is a judgment reversing and remanding a case to the Secretary for

additional proceedings under sentence four of 42 U.S.C. § 405(g) that makes a

plaintiff a prevailing party for purposes of the EAJA.”); Flores v. Shalala, 49 F.3d

562, 566 (9th Cir. 1995) (in evaluating whether government’s position was

substantially justified, focus is on issue that led to remand, rather than ultimate

issue of disability).

       “Factors relevant to the determination of disability onset include the

individual’s allegation, the work history, and the medical evidence.” SSR 83-20.

Where it is necessary to infer the onset date because medical evidence at the time




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of onset is lacking, a medical advisor should be called to testify at the hearing.

Id.

      Here, the record reflects that claimant has not engaged in substantial

gainful activity since December 31, 1988. There are no medical records for the

relevant time period prior to claimant’s date last insured of December 31, 1989.

The January 1990 medical records, as well as other, later medical reports, indicate

that claimant may have been disabled by post-traumatic stress syndrome prior to

December 31, 1989. Accordingly, it was necessary to infer the onset date. As the

district court held, SSR 83-20 required the ALJ to call a medical advisor to

testify. See Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993) (social

security rulings are binding on an ALJ). His failure to do so was without a

reasonable basis in fact or law, and consequently, the government’s position was

not substantially justified.

      The judgment of the district court is REVERSED, and the case is

REMANDED for a determination of the appropriate fee.



                                                     Entered for the Court



                                                     Robert H. Henry
                                                     Circuit Judge



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