* Effective March 31, 1995, the functions of the Secr etary of Health and

Human Services in social security cases were transf erred 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 o f the underlying decision.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

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

RANDOLF T. OTT,

Plaintiff-Appellant,

v. SHIRLEY S. CHATER, Commissioner of Social Security, *

Defendant-Appellee. No. 96-3163 (D.C. No. 94-4235-DES) (D. Kan.)

ORDER AND JUDGMENT **
Before PORFILIO, BALDOCK, and HENRY, Circuit Judges

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After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Claimant Randolf T. Ott appeals the district court’ s order denying his request for attorney fees made pursuant to the Equa l Access to Justice Act (EAJA), 28 U.S.C. § 2412, following the district co urt’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 appropr iate fee. Background Claimant filed for disability insurance benefits al leging he became disabled by post-traumatic stress syndrome caused by his tou r of duty in Vietnam from 1965 to 1969. He claimed that he was totally disabl ed prior to the expiration of his insured status on December 31, 1989. On August11, 1993, he wrote a letter requesting the presence of a medical advisor at the administrative hearing and renewed his request at the hearing. An Administrat ive 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 de nied review. The district court concluded that the medical evidence was ambig uous, and remanded for further administrative proceedings, directing that a medical adviser be called to testify regarding the onset date of claimant’s disa bility, as required by Social Security Ruling 83-20 (SSR 83-20).-3-

Claimant then sought fees under the EAJA, which pro vides for an award of attorney fees “unless the court finds that the posi tion of the United States was substantially justified or that special circumstanc es make an award unjust.” Section 2412(d)(1)(A). There is no dispute that cl aimant is a “prevailing party” for purposes of the EAJA. The government’s positio n is “substantially justified” if it has a reasonable basis in law and fact. Pier ce v. Underwood , 487 U.S. 552, 565 (1988). “We review the district court’s determ ination of whether the government’s position was substantially justified f or abuse of discretion.” Gilbert v. Shalala , 45 F.3d 1391, 1394 (10th Cir. 1995). The governm ent bears the burden of proving its position was substantially ju stified. Id. Discussion On appeal, claimant asserts that the government’s p osition was not substantially justified because the ALJ denied clai mant’s requests for a medical advisor to testify at the administrative hearing re garding the onset date of claimant’s disabling condition. He argues that SSR83-20 required the ALJ to call a medical advisor because the onset date of cl aimant’s disability had to be inferred. He further claims that the government co mpounded the ALJ’s errors by opposing his appeals to the Appeals Council and the district court. In denying claimant’s motion for fees, the districtcourt ruled that “[a] reasonable person could have adduced from the evide nce which was before the-4-

ALJ that the [claimant] did not become disabled unt il after 1989,” and therefore the government’s position was substantially justifi ed. District court’s Feb. 23, 1996 order at 6-7. The district court’s earlier or der, however, remanded the case for further administrative proceedings on the groun d that the ALJ had failed to call a medical advisor to testify at the hearing, p ursuant to SSR 83-20. The issue was not whether a reasonable person couldhave determined that claimant was not disabled until after 1989. Rather , the issue was whether the government met its burden to show that it was subst antially 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 de nial 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 EA JA.”); Flores v. Shalala , 49 F.3d 562, 566 (9th Cir. 1995) (in evaluating whether gov ernment’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 becau se medical evidence at the time-5-

of onset is lacking, a medical advisor should be ca lled to testify at the hearing. Id. Here, the record reflects that claimant has not eng aged in substantial gainful activity since December 31, 1988. There ar e 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 t o 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 failu re 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

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Entered for the Court

Robert H. Henry Circuit Judge