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SPARLING v. SULLIVAN

February 28, 1992

LYLA SPARLING, Plaintiff,
v.
LOUIS W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.



The opinion of the court was delivered by: NEAL P. MCCURN

NEAL P. McCURN, C.J.

 MEMORANDUM-DECISION AND ORDER

 INTRODUCTION

 BACKGROUND1

 The parties do not dispute the procedural history of this matter. Plaintiff filed her first application for disability insurance benefits on January 18, 1983. This application was denied initially and on reconsideration. Plaintiff did not seek an administrative hearing. Subsequently, plaintiff filed a second application for benefits on July 26, 1984. Like her first application, this one was denied initially and on reconsideration. This time, however, plaintiff requested a hearing which was held on April 24, 1985. The ALJ denied plaintiff's claim in a decision dated May 14, 1985. Plaintiff did not seek judicial review of this decision. On August 26, 1986, plaintiff filed a third application for benefits. Again her application was denied initially. Plaintiff sought no further review of this application.

 Finally, on March 7, 1988, plaintiff filed her fourth application for benefits. This is the application which is the subject of the present suit. This application, like her previous three, was denied initially and on reconsideration. Plaintiff requested a hearing which was held on November 8, 1988. The ALJ considered the case de novo and on September 27, 1989, concluded that plaintiff was not under a disability. This decision became the Secretary's final decision when the Appeals Council denied plaintiff's request for review on May 23, 1990.

 On July 23, 1990, plaintiff sought judicial review of this decision in this court. This court referred the case to a Magistrate pursuant to 28 U.S.C. section 636(b) and Local Rule 44(f). Subsequently, this court adopted the Magistrate's report-recommendation and remanded tee matter to the Secretary on April 17, 1991, for further proceedings. On remand, the ALJ issued a decision on September 25, 1991, in which he found that plaintiff was entitled to a period of benefits beginning December 31, 1987.

 Plaintiff submitted her request for attorney's fees on December 20, 1991. It is this request which is before this court today. Defendant opposes this application on the grounds that it is untimely. In the alternative, defendant urges that should this court determine that the application is timely, the court should not award plaintiff attorney's fees for the time spent at the administrative level subsequent to this court's remand.

 DISCUSSION

 The Equal Access to Justice Act, 28 U.S.C. section 2412, states in pertinent part:

 (B) A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection, . . . The party shall also allege that the position of the United States was not substantially justified. Whether or not the position of the United States was substantially justified shall be ...


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