The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER GRANTING MOTION FOR ATTORNEY'S FEES
Plaintiff, Rose M. Millar, moves for an award of attorney's fees in the amount of $2,223.44*fn1 and expenses of $124 under the Equal Access to Justice Act (EAJA). 28 U.S.C. § 2412(d)(1)(A). Defendant objects to Millar's motion on the grounds that Millar was not a "prevailing party." Millar's motion for attorney's fees (Docket 15) and motion to supplement attorney declaration (Docket 19) are granted.
In February of 2003, Millar was found by an Administrative Law Judge (ALJ) to have been disabled and entitled to social security disability benefits commencing in February of 2002, but not before. Millar appealed the ALJ's decision to the Appeals Council as to the disability onset date. The Appeals Council remanded the case back to the ALJ. On remand, the ALJ determined that Millar had never been disabled and was therefore not entitled to any benefits at any time.*fn2 The ALJ's second ruling, that Millar had never been disabled and was not entitled to benefits, became the agency's final decision.
Millar then appealed to this court for review of the agency's final decision. Millar sought two forms of judicial relief. First, Millar sought a writ of mandamus prohibiting defendant from terminating Millar's social security disability and social security insurance benefits. Second, Millar sought to reverse the agency's finding of no disability and to have Millar's benefits commence at the appropriate date.
Because parts of the record were lost by the administration, however, defendant moved to remand the case pursuant to sentence six of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Millar did not object to the remand, but asked for this court to order that Millar's interest in the benefits be protected while the matter was before the ALJ. The court granted defendant's request for remand, and pursuant to Millar's request, further ordered that defendant be prohibited from terminating Millar's benefits while the matter was before the administrative law judge.
While Millar's case was before an ALJ for a third time, Millar moved to dismiss her claim for an earlier disability onset date. The ALJ granted Millar's motion and dismissed the case. As a result, Millar's benefits were not terminated, and she is still receiving social security disability benefits.
1. Standard for Award of Attorney's Fees
Under the EAJA, a "prevailing party" in a proceeding for judicial review of federal agency action is entitled to legal fees and costs "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A).*fn3 Defendant argues that Millar is not a "prevailing party" for purposes of recovering attorney's fees under the EAJA. Defendant does not argue that its position was substantially justified or supported by substantial evidence. Also, defendant does not argue that the number of hours Millar spent on the case was unreasonable. Thus, the only issue before the court is whether Millar is properly considered a "prevailing party."*fn4
A. The Standard for Being Considered a "Prevailing Party"
In Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001), the Supreme Court set forth a two-part test for determining whether a party is considered a prevailing party when there is no final judgment based on the merits of the case.*fn5 First, the party must demonstrate a "material alteration of the legal relationship of the parties." Id. at 604 (quoting Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989) (other citations omitted)). The second requirement is that the relief must be "judicially sanctioned." Id. at 605; see also Carbonell v. Immigration and Naturalization Serv., 429 F.3d 894, 898 (9th Cir. 2005) ("According to Buckhannon, a litigant must meet two criteria to qualify as a prevailing party. First, he must achieve a 'material alteration of the legal relationship of the parties.' Second, that alteration must be 'judicially sanctioned.' " (citations omitted)). Thus, even when there is no final judgment on the merits of the case, a party may nonetheless become a prevailing party if Buckhannon's two-part test is satisfied. See Carbonell, 429 F.3d at 899 (noting the majority viewpoint that "a litigant can 'prevail' for the purposes of awarding attorney's fees as a result of judicial action other than a judgment on the merits or a consent decree" (citing Pres. Coal. v. Fed. Transit Admin., 356 F.3d 444 (2d Cir. 2004); T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469 (7th Cir. 2003); Truesdell v. Phila. Hous. Auth., 290 F.3d 159 (3d Cir. 2002); Am. Disability Ass'n, Inc. v. Chmielarz, 289 F.3d 1315 (11th Cir. 2002); Smyth v. Rivero, 282 F.3d 268 (4th Cir. 2002))).
2. Whether Millar is a Prevailing Party
Because there has been no final judgment based on the merits of Millar's case on account of the dismissal, the two-part test set out in Buckhannon applies as described above. See Loudner v. United States, 379 F. Supp. 2d 1048, 1051 (D.S.D. 2005) (noting that the relief obtained must have "materially alter[ed] the legal relationship between the parties" and that "the change in the relationship must [have ...