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MACDONALD v. SCHWEIKER

November 1, 1982

MARY MACDONALD, Plaintiff,
v.
RICHARD SCHWEIKER, Secretary of the Department of Health and Human Services, Defendant



The opinion of the court was delivered by: PRATT

MEMORANDUM AND ORDER

 PRATT, C.J.:

 On May 3, 1982, the court denied defendant's motion to dismiss the complaint in this action and granted plaintiff's motion to remand the case to the Appeals Council for review. Counsel for plaintiff now moves for an award of costs and attorneys' fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (EAJA).

 Plaintiff commenced this action after the Appeals Council refused to review two decisions of the administrative law judge (ALJ) denying plaintiff's application for benefits prior to March 23, 1979. On May 22, 1980, plaintiff, who was not represented by counsel at that time, was granted disability insurance benefits retroactive to March 23, 1979, but was denied benefits before that date. Accompanying the notice of decision was a letter containing directions for plaintiff to follow if she wished to appeal the decision. The directions, in summary, stated that plaintiff had the right to request the Appeals Council to review the decision within 60 days, and that she could do so by filing a request for review at the social security office or the hearing office, or by writing or telephoning those offices and indicating her intent to request review. Plaintiff called the ALJ's secretary within the appropriate time period to make inquiry concerning the steps she should take to appeal the decision with respect to the date of the onset of her disability. The secretary told her that an appeal was unnecessary because the ALJ would reopen the decision and consider plaintiff's additional evidence.

 Plaintiff then retained an attorney to represent her in this matter. The attorney requested that the ALJ reopen the decision so that plaintiff could present additional evidence to establish the date of disability earlier than March 23, 1979. The ALJ conducted a hearing at which plaintiff appeared personally and testified as did a doctor. On November 25, 1980, the ALJ denied the request to reopen his decision.

 On January 9, 1981, plaintiff requested the Appeals Council to review the ALJ's decision of November 25, 1980, and was advised that the denial of a request to reopen the hearing decision was not appealable. Further, plaintiff was told that no good cause had been shown for extending the time to file a request for review of the ALJ's decision of May 22, 1980.

 Defendant moved to dismiss the claim in this court on the ground that the court lacked subject matter jurisdiction because there was no "final decision" of the secretary for judicial review as required by 42 U.S.C. § 405(g).

 After a careful examination of the record, the court determined that the Appeals Council had been incorrect in refusing to review the ALJ's decision of November 25, 1980, because the ALJ had in fact reopened the hearing decision, taken new testimony, and made new findings of fact and credibility based on new evidence relating to plaintiff's physical condition prior to March 1979. Plaintiff had filed a timely request to appeal that decision and, therefore, the court held that she was entitled to review on the merits by the Appeals Council pursuant to 20 CFR § 404.970. Thus, plaintiff's claim was remanded for review by the Appeals Council.

 The court also noted that, with respect to the ALJ's original decision of May 22, 1980, plaintiff, in telephoning the ALJ's office to ask how she could appeal the decision, was following the directions which were supplied on defendant's form notice to plaintiff concerning her right to appeal. While the court did not rely upon this fact as a basis for the decision to remand, it did suggest that the wording of the notice was misleading, especially for pro se litigants.

 Plaintiff's application for counsel fees followed this decision.

 The Equal Access to Justice Act provides in relevant part:

 
(a) except as otherwise specifically provided by statute, a judgment for costs, as enumerated in Section 1920 of this title, but not including the fees and expenses of attorneys, may be awarded to the prevailing party in any civil action brought by or against the United States or any agency and any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. A judgment for costs when taxed against the United States shall, in an amount established by statute, court rule, or order, be limited to reimbursing in whole or in part the prevailing party for the costs incurred by such party in the litigation.
 
* * *
 
(d) (1) (A) except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the ...

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