The opinion of the court was delivered by: DUFF
The plaintiff, Henry Carter, Jr., has moved this court to issue an order retaining jurisdiction over his complaint for administrative review. On July 3, 1991, this court remanded the case to the Security of Health and Human Services after ruling that the Secretary's decision denying Mr. Carter disability benefits was not supported by substantial evidence and was not adequately explained. Mr. Carter fears that if this court fails to retain jurisdiction, he may be unable to make a timely application for attorneys' fees under the Equal Access to Justice Act. This fear is due to the Supreme Court's decision in Melkonyan v. Sullivan, 115 L. Ed. 2d 78, U.S. , 111 S. Ct. 2157 (1991) which held that such applications for attorneys' fees must be made within thirty days of the end of the period of appeal of a final decision by a district court. If Mr. Carter prevails on remand and no further district court action is taken, however, he will be unable to make a timely application. Mr: Carter therefore requests that this court retain jurisdiction so as to avoid the dilemma that Melkonyan has created.
Mr. Carter filed an application for Social Security disability insurance benefits ("DIB") on March 11, 1986. See 42 U.S.C. §§ 416(i) and 423. In his application, he alleged that he became disabled on November 30, 1977. The Social Security Administration initially denied Mr. Carter's application in full. After reconsidering, however, the Administration determined that Mr. Carter was indeed eligible for DIB as of June 30, 1983 but that he was not eligible for any time before then. He has received disability benefits for the period from June 30, 1983 through the date he became entitled to retirement insurance benefits in 1986.
The plaintiff then appealed the ALJ's ruling to the Social Security Administration's Appeals Council. The Appeals Council vacated the ALJ's decision and remanded the case to him to obtain additional testimony regarding Mr. Carter's ability to work. The ALJ conducted another hearing after which he issued a second decision finding the plaintiff not disabled prior to June 30, 1983. Carter again appealed to the Appeals Council. The Appeals Council in turn remanded the case to the ALJ a second time after deciding once again that the evidence was not adequate to support the ALJ's decision. In July of 1989, however, the ALJ ruled for a third time that Mr. Carter was not disabled prior to June 30, 1983. In May of 1990, the Appeals Council denied review of the ALJ's third ruling.
Pursuant to 42 U.S.C. § 405(g), Mr. Carter then sought judicial review in this court of the Secretary's adverse decision regarding his eligibility for DIB for the period between November 30, 1977 and June 30, 1983. His complaint also included a request for attorney's fees under the Equal Access to Justice Act ("EAJA"). See 28 U.S.C. § 2412(d).
On July 3, 1991, this court issued an order (the "July 3 order") remanding this case to the Secretary for a determination of the date plaintiff became disabled. This court ruled that the Secretary's choice of June 30, 1983 as the date of onset of disability was not supported by substantial evidence and was not adequately explained. The July 3 remand order stated in relevant part:
There is no dispute that the plaintiff has been disabled since 1983. The only question is whether substantial evidence supports the Secretary's decision that prior to 1983 he was not disabled. The record reveals that three doctors opined as to the plaintiff's condition [in] the period following 1978. Of the three doctors, two determined that he was in fact disabled. While the Secretary can accord greater weight to the testimony of the doctor who determined he was not disabled, he cannot simply disregard contrary evidence without an adequate explanation. Garfield v. Schweiker, 732 F.2d 605, 609 (7th Cir. 1984). There has been no adequate explanation.
In sum, the Secretary has failed to adequately explain why it chose June 30, 1983 as the onset date of the plaintiff's disability. Nothing of any significance occurred on that date. See Lindner v. Sullivan, 902 F.2d 1263 (7th Cir. 1990). The Secretary must either support its conclusion that June 30, 1983 is the appropriate date, or determine what date prior to [June 30, 1983] is. (some citations omitted).
Since winning a remand, Plaintiff has moved this court to issue an order retaining jurisdiction over his complaint for administrative review. He has so moved because he fears that under Melkonyan v. Sullivan, 115 L. Ed. 2d 78, U.S. , 111 S. Ct. 2157 (1991), he may be disqualified from collecting attorney's fees under the EAJA unless this court retains jurisdiction. His motion to ...