Allbritton v. Secretary of Health and Human Serv., Civ. A. No. 87-0223-F.

• Decision Date: 24 June 1992
• Docket Number: Civ. A. No. 87-0223-F.
• Citation: 796 F. Supp. 35
• Parties: Gus A. ALLBRITTON, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
• Court: U.S. District Court — District of Massachusetts

796 F. Supp. 35

Gus A. ALLBRITTON, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.

Civ. A. No. 87-0223-F.

United States District Court, D. Massachusetts.

June 24, 1992.

Kenneth P. Neiman, Fierst, Neiman & Guyer, Northampton, Mass., for plaintiff.

Nancy B. Salafia, Boston, Mass., for defendant.

MEMORANDUM AND ORDER

FREEDMAN, Senior District Judge.

I. INTRODUCTION

Before the Court is plaintiff Gus A. Allbritton's petition for an award of attorney fees and other legal costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(B), for his lawyer's services rendered in connection with plaintiff's application for social security disability and disability insurance benefits. Defendant Secretary of Health and Human Services ("the Secretary") opposes the petition, asserting that plaintiff failed to file for reimbursement within the statutory time period.

On consideration of the parties' arguments and on scrutiny of the pertinent, albeit conflicting, case law on the subject, the Court rules that plaintiff may file a new application for attorney fees and costs. The Court need not decide the outcome of the alternative request for attorney's fees pursuant to 42 U.S.C. § 406(b).

II. BACKGROUND

On April 16, 1986, plaintiff filed an application for social security disability and disability insurance benefits. Administrative Record ("A.R.") 58-61. After a hearing before an Administrative Law Judge ("ALJ") in Augusta, Georgia, plaintiff's application was denied by the Secretary in a decision dated July 27, 1987. A.R. 5-14. The ALJ decided that plaintiff suffered from "post traumatic stress syndrome, depression or a personality disorder," but that plaintiff did not have "an impairment or combination of impairments listed in, or medically equal to, one of the impairments listed in Appendix 1, Subpart P, Regulations No. 4." A.R. at 13. The Secretary's Appeals Council upheld the ALJ's determination on October 8, 1987. A.R. 2-3.

Plaintiff subsequently relocated to the Springfield, Massachusetts area, and filed with this Court, through Attorney Neiman, a challenge to the adverse administrative ruling. See 42 U.S.C. § 405(g) (providing for judicial review of a final decision by the Secretary). In an opinion dated June 4, 1990, the Court denied both plaintiff's motion to reverse the decision of the Secretary and defendant's motion for an order affirming the administrative decision. Memorandum and Order at 14 (June 4, 1990). The Court remanded the cause to the Secretary without modifying the administrative determination in any way. Id. Rather, the Court remanded the case "for a redetermination of the plaintiff's vocational abilities and eligibility for benefits," id., in accord with the Secretary's five-tier inquiry. See 20 C.F.R. §§ 404.1520-404.1520a; Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir.1982).

On remand, an ALJ in Florida, where plaintiff had moved, found, contrary to the previous administrative decision, that plaintiff's mental condition met an impairment listed in the Secretary's regulations. Decision Upon Remand by the Appeals Council (May 31, 1991) (attached to Plaintiff's Application for Award of Attorney's Fees Under Equal Access to Justice Act, 28 U.S.C. § 2412, or, Alternatively, Approval of Fees under 42 U.S.C. § 406(b) (January 17, 1992) ("Plaintiff's Fee Application"). As a result, the ALJ awarded disability and disability insurance benefits, noting that "the claimant has been under a `disability,' within the meaning of the Social Security Act, since April 14, 1984." Id. at 6.

On January 17, 1992, plaintiff filed this petition for attorney fees and litigation costs pursuant to section 2412(d)(1)(B), or, in the alternative, pursuant to 42 U.S.C. § 406(b). The Secretary responded with an opposition to the application for fees and related expenses. Defendant's Opposition to Plaintiff's Application for Attorney's Fees under the Equal Access to Justice Act (January 29, 1992) ("Defendant's Opposition").

III. THE CONTROLLING LAW AND THE LEGAL DILEMMA

The Secretary's opposition to an award of legal fees and expenses in this instance rests on a body of higher authority, that, when construed in a literal fashion, cultivates a dilemma of sorts, an unresolved paradox. The federal district courts and some of the circuit courts, though not the First Circuit, already have weeded through the thorny issue. Like a defiant annual, the question takes root and blossoms, this time, before this tribunal. The Court addresses the problem for the first time, and attempts to put the issue to bed.

An understanding of the dilemma meshes one in a tangle of statutory construction and case-law interpretation. One of the relevant statutes provides for judicial review of an unfavorable final decision of the Secretary:

Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the District Court of the United States for the District of Columbia. As part of his answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have the power to enter, upon the pleadings and the transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, and where a claim has been denied by the Secretary or a decision is rendered under subsection (b) hereof which is adverse to an individual who was a party to the hearing before the Secretary, because of failure of the claimant or such individual to submit proof in conformity with any regulation prescribed under subsection (a) hereof, the court shall review only the question of conformity with such regulations and the validity of such regulations. 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 that is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding; and that the Secretary shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm his findings of fact or his decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of the of the additional record and testimony upon which his action in modifying or affirming was based. Such additional or modified findings of fact and decision shall be reviewable only to the extent provided for review of the original findings of fact and decision. The judgment of the court shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions. Any action instituted in accordance with this subsection shall survive notwithstanding any change in the person occupying the office of the Secretary or any vacancy in such office.

42 U.S.C. § 405(g) ("section 405(g)") (emphasis at sentences four and six supplied).

The Supreme Court of the United States recently held that a federal district court may remand a case to the Secretary pursuant only to the two underscored portions of section 405(g), i.e., a court may order a "sentence four" or "sentence six remand." Melkonyan v. Sullivan, ___ U.S. ___, 111 S.Ct. 2157, 2164, 115 L.Ed.2d 78, 93 (1991). A remand under sentence four ordinarily accompanies a final judgment which affirms, modifies or reverses the Secretary's decision. Id. 111 S.Ct. at 2163, 115 L.Ed.2d at 91-92; Sullivan v. Finkelstein, 496 U.S. 617, 624-25, 110 S.Ct. 2658, 2663-64, 110 L.Ed.2d 563, 573 (1990). A sixth-sentence remand, however, "describes an entirely different kind of remand, appropriate when the district court learns of evidence not in existence or available to the claimant at the time of the administrative proceeding that might have changed the outcome of that proceeding." Finkelstein, 496 U.S. at 626, 110 S.Ct. at 2664, 110 L.Ed.2d at 574. If a court remands to the Secretary pursuant to sentence six, then it must comply with the language of that provision and the court must base its ruling on a discovery of "new evidence" and must make the requisite finding of "good cause." Melkonyan, 111 S.Ct. at 2164, 115 L.Ed.2d at 93-94. The amendments to section 405(g) support a view that the requirements of sentence six are to be strictly construed. Id. 2164, 115 L.Ed.2d at 93 ("In amending the sixth sentence of § 405(g) in 1980, Congress made it unmistakably clear that it intended to limit the power of District Courts to order remands for `new evidence' in social security cases.").

An important consequence distinguishes sentence four and sentence six remands under section 405(g). Whereas a federal district court normally divests itself of jurisdiction, a final order issuing, on remand pursuant to the fourth sentence, a court retains jurisdiction over a remand in accord with sentence six. In this case, the Court deals with a remand under sentence four of section 405(g).¹

The Equal Access to Justice Act provides, in pertinent part:

A party seeking an award of fees

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