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CEGLIA v. SCHWEIKER

May 24, 1983

MARIE CEGLIA, Plaintiff,
v.
RICHARD S. SCHWEIKER, Secretary of the United States Department of Health and Human Services, Defendant



The opinion of the court was delivered by: GLASSER

MEMORANDUM AND ORDER

 GLASSER, United States District Judge:

 On January 28, 1983, this Court remanded for reconsideration a determination of the Secretary of Health and Human Services (the "Secretary") denying plaintiff's application for widow's disability benefits. Plaintiff now petitions this Court for attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). *fn1" For the reasons that follow, the application of the plaintiff is granted.

 Facts

 The plaintiff applied for Disabled Widows Social Security Insurance benefits on October 18, 1979 (T 60-65). After her application was denied, the plaintiff filed for a reconsideration of the claim and it was again denied. (T 67-68, 70-73, 74-75). The plaintiff then requested an administrative hearing, which was held before an Administrative Law Judge ("ALJ") on July 18, 1980.

 The record before the ALJ contained medical evaluations favorable to the plaintiff's claim by the plaintiff's treating physician and a physician who examined her as a consultant to the Social Security Administration. The record also contained a medical evaluation unfavorable to the plaintiff's claim by a Dr. David Abramson, who did not examine plaintiff but merely reviewed her social security file as a consultant to the Social Security Administration.

 The ALJ, in a decision rendered on October 17, 1980, affirmed the denial of the plaintiff's application for widow's benefits. (T 12-16) The ALJ based his denial of benefits substantially on the conclusions of Dr. Abramson. (T 15)

 The plaintiff then requested a review of the ALJ's decision by the Appeals Council of the Social Security Administration. Plaintiff's counsel submitted a letter to the Appeals Council which argued that the decision of the ALJ should be reversed because the evidence established that plaintiff was disabled. Plaintiff argued in the alternative that the matter should be remanded for a new hearing because the ALJ's decision, in resting primarily on the evaluation of a non-treating, non-examining physician, was not supported by substantial evidence. The Appeals Council denied the plaintiff's request for review on March 2, 1981, thereby rendering the ALJ's decision the final decision of the defendant in this case. (T 4-5)

 The plaintiff commenced this action on May 4, 1981, and was permitted to prosecute this appeal in forma pauperis. In her complaint the plaintiff argued that this Court should reverse the defendant's decision because the record established disability. In the alternative, the plaintiff argued that the ALJ failed to properly weight the evaluations of the physicians involved in this case and that, therefore, the matter should be remanded for a new hearing.

 On July 27, 1982, the plaintiff moved for summary judgment in her favor. On August 26, 1982, the defendant cross-moved for judgment on the pleadings in its favor.

 In a memorandum and order dated January 28, 1983, I denied the defendant's motion and granted the plaintiff's motion to the extent of remanding the plaintiff's claim to the defendant Secretary for a new hearing. In reaching this determination, I held that Dr. Abramson's medical opinion, contrary as it was to the opinions of the examining physicians, could not constitute substantial evidence supporting a finding of nondisability. The matter was remanded for a new hearing wherein the reports of the examining physicians were to be properly weighed.

 That order was entered by the Clerk of the Court on February 1, 1983. This motion for counsel fees under the EAJA was made within thirty days of that order.

 Discussion

 The EAJA provides, in relevant part, ...


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