Milliron v. Bowen, Civ. A. No. 86-113.

• Decision Date: 27 January 1989
• Docket Number: Civ. A. No. 86-113.
• Citation: 708 F. Supp. 677
• Parties: Arthur J. MILLIRON, Plaintiff, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

708 F. Supp. 677

Arthur J. MILLIRON, Plaintiff, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant.

Civ. A. No. 86-113.

United States District Court, W.D. Pennsylvania.

January 27, 1989.

Samuel S. Blaufeld, Pittsburgh, Pa., for plaintiff.

Albert W. Schollaert, Asst. U.S. Atty., for defendant.

MEMORANDUM ORDER

GERALD J. WEBER, District Judge.

After obtaining an award of Social Security disability benefits on remand to the Secretary, plaintiff's counsel seeks an award of attorney's fees under the Equal Access to Justice Act, (EAJA), 28 U.S.C. § 2412 for the time spent before this court securing remand. The government has opposed this application on the premise that plaintiff is not a "prevailing party" within the meaning of the EAJA.

Plaintiff's original application alleged an onset date of April 26, 1984. This application was denied at every administrative level, and the decision of the Secretary became final on January 8, 1986. Plaintiff appealed to this court and on December 9, 1986 we issued an Opinion and Order, vacating the Secretary's decision and remanding for further proceedings.

On remand plaintiff presented new medical evidence concerning plaintiff's hospitalization on June 10, 1986. This evidence had not previously been available to the Secretary or this court. Although the Secretary reaffirmed his decision denying benefits for the earlier period, he did find a disability commencing with the hospitalization of June 10, 1986. Plaintiff did not appeal this decision.

Plaintiff now seeks an award of fees for the time spent before this court securing remand, contending that the government's position before this court was not substantially justified and that plaintiff ultimately prevailed on remand. The government on the other hand points out that plaintiff did not obtain any award of benefits for the time period which was the subject of the initial administrative proceedings and the appeal to this court, and therefore cannot be considered a prevailing party under the EAJA.

Merely obtaining a remand is not sufficient to make plaintiff a prevailing party under the EAJA. E.g., Brown v. Secretary, 747 F.2d 878 (3d Cir.1984). Plaintiff must ultimately secure an award of benefits and as one court has put it, to be a prevailing party the claimant "must obtain those benefits which he sought on the original appeal to the district court." Swedberg v. Bowen, 804 F.2d 432, 434 (8th Cir.1986). See also, Sherman v. Bowen, 647 F.Supp. 700 (D.Me.1986); Moore v. Bowen, 1987 WL...