* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 01-30150

Summary Calendar

 

ORIE W. MCQUEEN,

Plaintiff-Appellant,

versus

LARRY G. MASSANARI,

ACTING COMMISSIONER OF SOCIAL

SECURITY

Defendant-Appellee.

--------------------

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 96-CV-1535

--------------------

September 5, 2001

Before DeMOSS, PARKER and DENNIS, Circuit Judges.

PER CURIAM:*

This is Orie McQueen’s second appeal to this court. In his

first appeal, McQueen contested the district court’s denial of

social security disability benefits. McQueen v. Apfel, 168 F.3d

152, 153 (5th Cir. 1999). This court reversed and remanded with

instructions to award McQueen disability benefits on the grounds

that the district court employed an improper standard in

evaluating McQueen’s claims. Id. at 156.
No. 01-30150

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Now, on appeal following remand, McQueen challenges the

district court’s denial of his attorney’s fees incurred in

prosecuting the underlying proceedings pursuant to the Equal

Access to Justice Act (“EAJA”). 28 U.S.C. § 2412 (d)(1)(A). The

EAJA mandates an award for attorney’s fees if three factors

exist: 1) the claimant is a “prevailing party;” 2) the position

of the United States was not “substantially justified;” and 3)

there are no special circumstances that make an award unjust. 

Sims v. Apfel, 238 F.3d 597, 599-600 (5th Cir. 2001). The scope

of reviewing government action for “substantial justification”

comprises a review of agency action or inaction upon which the

civil action for attorney’s fees is sought. 28 U.S.C. § 2412

(d)(1)(B); Sims, 238 F.3d at 602; Herron v. Bowen, 788 F.2d 1127,

1130 (5th Cir. 1986). Reasonableness is the crux of the

substantial justification standard. Herron, 788 F.2d at 1132. 

The government bears the burden to demonstrate that its position

was substantially justified at every stage of the proceedings. 

Id. at 1130.

In McQueen’s case, the underlying action of the Social

Security Administration falls short of meeting the test of

reasonableness for “substantial justification.” The underlying

action of the Administration began with an erroneous hypothetical

that the ALJ posed to a vocational expert at McQueen’s

administrative hearing. McQueen, 168 F.3d at 155. While this

error triggered the use of the wrong standard, the further

inaction of the Social Security Appeals Council justifies an

award of attorney’s fees under the EAJA. During McQueen’s appeal
No. 01-30150

-3-

to the Council, he apprised the Council of the defective age

hypothetical. McQueen, 168 F.3d at 155. We held that although

McQueen did not specifically reference the federal guideline for

the “highly marketable” standard, his 

defective age hypothetical constituted an “expansion of the

general rationale” of the improper standard argument. Id. 

Moreover, the Council’s refusal to consider the new evidence

regarding the improper hypothetical constituted a disregard for

federal guidelines. See 20 C.F.R. § 404.976 (b)(requiring the

Appeals Council to consider any new evidence timely brought

before the Council). We also held that “the Commission’s

disregard for its own standards concerning McQueen’s advanced age

does not constitute good cause for the failure to incorporate

necessary evidence. Nor does the record evince any other good

cause for that failure.” McQueen, 168 F.3d at 156.

Therefore, we conclude that in this case the government’s

position was not substantially justified. Accordingly, this case

must be REVERSED and REMANDED for the district court to award

attorney’s fees pursuant to the EAJA.

REVERSED AND REMANDED.