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FLEMING v. BOWEN

June 11, 1986

NANCY FLEMING, Plaintiff,
v.
OTIS R. BOWEN, Secretary of Health and Human Services, Defendant


Charles R. Richey, United States District Judge.


The opinion of the court was delivered by: RICHEY

INTRODUCTION

 The Court has before it the Secretary of Health and Human Services' modified findings of fact and decision on remand finding that the plaintiff is entitled to disability insurance benefits and supplemental security income benefits. The Court also has before it plaintiff's Motion for an Award of Attorney's Fees and Costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (d)(1)(A) ("EAJA"), defendant's Opposition to plaintiff's Motion, and plaintiff's Reply.

 In the underlying cause plaintiff sought to reverse, pursuant to 42 U.S.C. §§ 405(g) & 1383(c)(3), the Secretary's decision denying plaintiff's claims for disability insurance benefits and supplemental security income benefits. For the reasons set forth below, the Court affirms the Secretary's decision on remand, and finds that the plaintiff is the prevailing party in the above-entitled cause and that the government's position is not substantially justified. Thus, plaintiff's Motion for an Award of Attorney's Fees and Costs must be granted.

 BACKGROUND

 Plaintiff, Nancy Fleming, is a fifty-one year old mother of eleven children. She has less than a ninth grade education and has worked as a maid, a housekeeper, and laundry worker. In September, 1980, plaintiff applied for disability insurance benefits ("DIB"). She claimed she was disabled due to anxiety and depression, orthopedic and related problems, hypertension, exogenous obesity, varicose veins, and latent diabetes. See Plaintiff's Memorandum in Support of Motion for Attorney's Fees and Costs at 1. Her application was denied.

 In July, 1982, plaintiff again applied for disability insurance benefits and Supplemental Security Insurance benefits ("SSI"). After a hearing before an Administrative Law Judge ("ALJ"), plaintiff's applications were denied. The Appeals Council subsequently denied plaintiff's request for a review of the ALJ's decision. Plaintiff then filed this action on February 11, 1985.

 After reviewing the record in this case, the Court found that the Secretary's final decision was not supported by substantial evidence. The Court reversed the Secretary's final decision and remanded the case to the Secretary for consideration of all the relevant evidence, including two recent medical reports, one of which was from the plaintiff's treating physician. See Court's Order of June 12, 1985 at 5.

 In July, 1985, an ALJ, after reviewing additional medical evidence, recommended that the plaintiff's claims be denied. Plaintiff filed exceptions to the ALJ's recommendation. On December 16, 1986, the Appeals Council issued its decision. While concurring with the ALJ's opinion that plaintiff's high blood pressure, hiatal hernia, diverticulosis, and alleged latent diabetes did not significantly interfere with her working, see Decision of the Appeals Council at 1, the Appeals Council found that the plaintiff's "musculoskeletal and mental impairments" would preclude plaintiff "from engaging in a significant number of jobs". Id. at 1 & 5.

 The Appeals Council found that the plaintiff had been disabled since December 15, 1979 and was entitled to DIB and SSI benefits. Id. at 5.

 I. THE SECRETARY'S DECISION ON REMAND FINDING THAT PLAINTIFF IS ENTITLED TO DIB AND SSI BENEFITS IS AFFIRMED, AND PLAINTIFF'S APPLICATION FOR ATTORNEY'S FEES IS DEEMED TO BE TIMELY FILED.

 As previously mentioned, the Court in its Order of June 12, 1985, reversed the Secretary's decision denying DIB and SSI benefits to the plaintiff-claimant and remanded the cause for consideration of additional medical evidence including a report filed by the plaintiff's treating physician. The Secretary has considered the additional medical evidence and finds that plaintiff is entitled to DIB and SSI benefits. Upon consideration of the Secretary's modified findings of fact and decision on remand and the record herein, the Court, pursuant to 42 U.S.C. § 405(g), affirms the Secretary's decision on remand since it is supported by substantial evidence.

 The Court's affirmance serves as the its final judgment in this matter and allows the Court to consider plaintiff's Motion for Attorney's Fees and Costs. See 28 U.S.C. § 2412(d)(1)(B) (party seeking award of attorney's fees and expenses shall file an application within 30 days of the final judgment in the action), McDonald v. Schweiker, 726 F.2d 311, 314 (7th Cir. 1983) (plaintiff-claimant can apply for attorney's fees and expenses "as soon as she has prevailed, i.e., as soon as the district court has entered final judgment"), see also Massachusetts Union of Public Housing Tenants, Inc. v. Pierce, 244 U.S. App. D.C. 34, 755 F.2d 177, 179 (D.C. Cir. 1985) (adopting the Seventh Circuit's analysis and holding in McDonald, 726 F.2d 311 (7th Cir. 1983)). The issue of attorney's fees and costs has been fully briefed by the parties. Now that the Court has issued its final judgment on the merits, the Motion for Attorney's Fees and Costs is timely filed and ripe for adjudication.

 II. PLAINTIFF IS THE PREVAILING PARTY IN THIS LITIGATION, AND THE GOVERNMENT'S POSITION IS NOT SUBSTANTIALLY JUSTIFIED. THEREFORE, PLAINTIFF IS ...


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