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March 13, 1986


The opinion of the court was delivered by: WEXLER


WEXLER, District Judge

 In 1978 Thomas O'Grady appealed to this Court for review of a determination by the Secretary of Health and Human Services (Secretary) terminating his disability benefits. 42 U.S.C. § 405(g). The Secretary stipulated to remand the claim for further consideration in 1979, and the Appeals Council vacated the decision to terminate benefits. A supplemental hearing was held before the ALJ in 1981. The ALJ found plaintiff disabled, but the Appeals Council reversed the findings and determined plaintiff was capable of performing sedentary work. This became the final decision of the secretary and plaintiff renewed his appeal to this Court.

 The Court reversed the Secretary's determination and reinstated Mr. O'Grady's disability benefits. O'Grady v. Heckler, 588 F. Supp. 850 (E.D.N.Y. 1984). The Court did not base the reversal on the medical improvement standard, which was endorsed by the Second Circuit Court of Appeals less than a week before the decision in this case. Rather, the Court determined that there was no substantial evidence on the record to support a finding that the plaintiff could perform sedentary work.


 Plaintiff now seeks an award of attorney's fees pursuant to Equal Access to Justice Act (EAJA) 28 U.S.C. § 2412(d). A prevailing party is entitled to recover attorney's fees from the government where the government fails to show that its position in litigation before the Court was not substantially justified. McGill v. Secretary of Health and Human Services, 712 F.2d 28, 30 (2d Cir. 1983). The test is whether the government's position was reasonable in both fact and law. Zimmerman v. Schweiker, 575 F. Supp. 1436, 1441 (E.D.N.Y. 1983). In this case the Court concluded that the Secretary's determination was "not supported by even a scintilla of evidence." O'Grady v. Heckler, 588 F. Supp. at 855. The Court found noting in the record that indicated that plaintiff could sit for more than an hour. Moreover, the Court concluded that the Secretary had egregiously miscast the opinion of one of the doctors and the vocational expert in an effort to construct some support for terminating benefits. The Secretary's position was not reasonable in fact, and, therefore, not substantially justified.

 Despite the fact that plaintiff was a prevailing party and the government's position was not substantially justified, fees cannot be awarded under the EAJA for work performed at the administrative level. McGill v. Secretary, 712 F.2d F.2d at 30. Moreover, unless there is contemporaneous documentation of work performed before this Court, no fees will be awarded under the EAJA for work performed before June 15, 1983. New York State Association for Retarded Children v. Carey, 711 F.2d 1136, 1147 (2d Cir. 1983).


 It is the Secretary's contention that no EAJA fees should be awarded above the 25% of past-due benefits limit of 42 U.S.C. § 406(b)(1). Thus the Secretary asks the Court to await calculation of past-due benefits and use the § 406(b)(1) limit for awards under the EAJA.

 A plaintiff must apply for EAJA fees within thirty days of entry of judgment in an action. 28 U.S.C. § 2412(d)(1)(B). Counsel's application for an award of fees from past-due benefits under 42 U.S.C. § 406(b)(1) must await calculation of past-due benefits. In the interest of economy and consistency it is the practice of this Court to await filing of both types of applications are filed.

 Nevertheless, the Court rejects the Secretary's ongoing effort to impose the limits of § 406(b)(1) on the amount awarded under the EAJA. The contention that EAJA fees must be capped at 25% of plaintiff's due benefits is without merit. Watford v. Heckler, 765 F.2d 1562 (11th Cir. 1985); Soto-Valentin v. Heckler, 619 F. Supp. 627 (E.D.N.Y. 1985). This Court declines to link the two laws and in effect double the strictures on EAJA fee awards. The two provisions were enacted separtaly and have independent existences. They award fees from different sources and for different purposes. In particular, the EAJA penalizes the government for taking an unreasonable position in litigation before a federal court. Recently, the Secretary's unreasonable, intransigent, and non-acquiescent stance on disability case has frustrated the courts and made them more willing to award fees under the EAJA.

 The provision of 42 U.S.C. § 406 are intended to encourage private attorneys to represent disability benefit applicants with meritorious case by guaranteeing that part of the benefit recovered will be reserved for payment of legal fees. At the same time, the 25% limit on fee awards preserves for the claimant most of the benefits of successful litigation. An award of fees under the EAJA requires a determination that the government's litigation position lacked a sound basis. The logical implication is that the plaintiff was required to pursue an unnecessary proceeding in order to secure benefits. The government should not be allowed to invoke claimant's § 406 (b) (1) protections to lessen its liability for causing a claimant extra effort. The Court will not limit an EAJA fee award to 25% of past-due benefits under 42 U.S.C. § 406(b)(1).


 Plaintiff requests EAJA fees for 39 1/4 hours of work performed before the Court. Plaintiff also requests EAJA fees for 10 1/4 hours of work at the administrative level during ...

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