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MISCIAGNO v. SECRETARY OF THE HHS

March 13, 1992

PHILIP MISCIAGNO, Plaintiff, against SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.


The opinion of the court was delivered by: CHARLES P. SIFTON

 SIFTON, District Judge

 This matter is currently before the Court on plaintiff's motion pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(B), for reasonable attorney's fees as the prevailing party in a case against the Secretary of the Department of Health and Human Services.

 For the reasons discussed below, this Court finds the motion premature. Under the analysis set forth in Melkonyan v. Sullivan, 115 L. Ed. 2d 78, 111 S. Ct. 2157 (1991), which must be applied retroactively to this case under James B. Beam Distilling Co. v. Georgia, 115 L. Ed. 2d 481, 111 S. Ct. 2439 (1991), this case is appropriately viewed as remanded to the Secretary under sentence six of 42 U.S.C. § 405(g). The judgment entered herein on April 16, 1991, is vacated pursuant to Rule 60(b) to reflect that the case was remanded to the Secretary to receive additional evidence as to onset date which the Secretary had no cause to receive earlier and, upon determining the onset date, to calculate benefits. Final judgment is directed to be entered against the Secretary and in favor of the plaintiffs in the amount of $ 28,544.33

 Plaintiff is given leave to refile his motion for EAJA fees following remand after any appeal of this judgment or when this judgment is no longer appealable.

 The following facts, except where expressly noted, are not disputed. On May 19, 1982, Philip Misciagno filed an application for disability and Supplemental Security Income Benefits. The Secretary denied the application after a hearing before Administrative Law Judge ("ALJ") Sugarman on the ground that plaintiff was not disabled. On July 25, 1984, this Court remanded the case. A second hearing was held before ALJ Sugarman on February 6, 1985, in which plaintiff was again denied benefits on the ground that he was not disabled.

 On November 30, 1987, this Court again remanded the case to the HHS. On remand the ALJ was ordered to consider a psychiatric evaluation of claimant and to apply the "treating physician rule." Schisler v. Heckler, 787 F.2d 76 (2d Cir. 1986). A third hearing was held before ALJ Sugarman on January 25, 1989. The ALJ denied benefits since he found that plaintiff could perform light work as defined by the residual functional capacity guidelines. The Appeals Council denied review.

 The decision of the Secretary was appealed to this Court. On April 16, 1991, this Court determined that the Secretary had again followed incorrect procedure. In view of the procedural history, this Court also stated that it was inappropriate to give the Secretary yet another chance to correct his errors. Plaintiffs Exh. B. This Court, therefore, issued a Decision and Order on April 16, 1991 ("the Order"), which stated:

 "For the reasons set forth on the record in open Court this day, the decision of the Secretary of the Department of Health and Human Services is hereby reversed, and the matter is hereby remanded for the calculation of benefits."

 Pl. Exh. A. That Decision and Order was not appealed.

 On remand, since the onset date of plaintiff's disability had never been determined, the Secretary took evidence from the plaintiff on this subject as well as considering evidence already in the record. Based on this evidence, an onset date of December 1982 was established. On October 7, 1991, plaintiff was advised that this entitled him to approximately $ 23,000 in retroactive benefits. After challenge relating to the calculation, this amount was recalculated at $ 28,544.33.

 Plaintiff argues that no "final judgment" should have been entered in this case. Defendant argues that final judgment was entered by the remand order and that the application is both time barred and without merit.

 DISCUSSION

 EAJA claims must be filed within 30 days of "final judgment in the action." 28 U.S.C. § 2412(d)(1)(B). A "'final judgment' means a judgment that is final and not appealable." 28 U.S.C. § 2312(d)(2)(G).

 The Supreme Court parsed the provisions allowing remand of HHS cases by district courts for further administrative procedures in Sullivan v. Finkelstein, 496 U.S. 617, 110 S. Ct. 2658, 110 L. Ed. 2d 563 (1990), and Melkonyan v. Sullivan, 115 L. Ed. 2d 78, 111 S. Ct. 2157 (1991). Under these cases only two types of remands exist, those under the fourth and sixth sentences of 42 U.S.C. § 405(g). Melkonyan, 111 S. Ct. at 2164.

 The language of the statute reads:

 "The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. [sentence four] . . . . The court may, on motion of the Secretary made for good cause shown before he files his answer, remand the case to the Secretary for further action by the Secretary, and it may at any time order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is ...


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