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March 10, 1992

EARLINE BADY, Plaintiff,
DR. LOUIS SULLIVAN, Secretary of Health and Human Services, Defendant.

The opinion of the court was delivered by: BRIAN BARNETT DUFF

 The court has before it two reports and recommendations from Magistrate Judge Rosemond. One recommends that the Plaintiff's claim for widower's insurance benefits be remanded to the Secretary of Health and Human Services. The second recommends denying Plaintiff's attorney's application for fees under the Equal Access To Justice Act ("EAJA"). No objections were filed to the Magistrate Judge's first recommendation remanding the claim for WIB and this court adopts it.

 Plaintiff's attorney filed a timely objection to the second recommendation denying an award of EAJA fees. Because the Court agrees with the Magistrate Judge that the government's position was substantially justified, it adopts his recommendation denying EAJA fees.


 In 1985, Plaintiff, Earline Bady, filed applications for three types of benefits under the Social Security Act: disability insurance benefits ("DIB"), widower's insurance benefits ("WIB") and supplemental security income ("SSI"). Her claims were all denied at the administrative level. She sought judicial review in this court under 42 U.S.C. § 405(g).

 The court granted an agreed motion dismissing the claim for DIB and remanding the SSI claim to the Secretary of Health and Human Services. That left only the claim for WIB before this court. The claim for WIB was sent to Magistrate Judge Gottschall after the parties had made cross-motions for summary judgment. The issue pertaining to Ms. Bady's claim for WIB is whether or not she was disabled sometime prior to March 31, 1984, seven years from the date when her survivor's benefits ceased. See Report and Recommendation of December 14, 1988 at 1-2. In her report and recommendation, Magistrate Judge Gottschall recommended that plaintiff's motion for summary judgment be denied and that the defendant's motion be granted. Bady did not file an objection.

 Meanwhile, on January 5 1989, an Administrative Law Judge ("ALJ") held a hearing with respect to the remanded claim for SSI. A psychiatrist, Dr. John Adams testified at the hearing as a medical advisor at the request of the ALJ. He testified that the negative side effects of her high blood pressure medication impaired Bady's mental condition to the extent that her mental condition met or equaled Listing 12.02 (dealing with organic mental disorders). See Administrative Record ("A.R.") at 272-279. The ALJ disagreed with Dr. Adams' conclusion that she was disabled under Listing 12.02, but nonetheless found that she was disabled "based on the nonexertional limitations caused by the medication, as well as the noted exertional limitation that I think could reasonably be expected from this kind of medication." A.R. at 200.

 Remanding the Claim for WIB

 Bady then moved this court to remand the claim for WIB benefits to the Magistrate Judge for reconsideration in light of Dr. Adams' testimony. In her motion to reconsider, Ms. Bady contended that remand was appropriate because new material evidence had come to light and she had good cause for not bringing it at the administrative level. The motion refers to the 1980 Amendment to 42 U.S.C. § 405(g) which permits district courts to remand cases to the Secretary where additional material evidence has come to light and the claimant had good cause for not having introduced it at the administrative level. Plaintiff was apparently relying upon the sixth sentence of 42 U.S.C. § 405(g) even though that sentence only permits "new evidence" remands upon motion of the Secretary made before he files his answer, a point overlooked by the Secretary in its memorandum in opposition to Bady's motion to reconsider. That oversight may not have prejudiced the Secretary, however, as it is presently unclear whether or not district courts may order sixth sentence remands in the absence of a motion by the Secretary. See Sullivan v. Finkelstein, 496 U.S. 617, 110 S. Ct. 2658, 2665, 110 L. Ed. 2d 563 (1990); Melkonyan v. Sullivan, 115 L. Ed. 2d 78, 111 S. Ct. 2157, 2163 (1991); Caulder v. Bowen, 791 F.2d 872 (11th Cir. 1986) (allowing sentence six remands on motion of the claimant and cited approvingly in Finkelstein, 111 S. Ct. at 2664 n.6); see also Cummings v. Sullivan, 950 F.2d 492 (7th Cir. 1991) (sentence six remand ordered by district court based on new evidence presented by the claimant).

 On February 28, 1989, the court issued an order remanding the cross-motions on the claim for WIB to the Magistrate for further consideration. After reviewing the case and the potential impact of the new evidence, Magistrate Judge Rosemond recommended that Bady's claim for WIB be remanded to the Secretary for further proceedings. The Secretary did not file an objection to Magistrate Judge Rosemond's report and recommendation. This court therefore adopts Magistrate Judge Rosemond's report and recommendation of October 30, 1990, recommending that Ms. Bady's claim for WIB be remanded to the Secretary. See The Provident Bank v. Manor Steel Corporation, 882 F.2d 258, 261 (7th Cir. 1989). This remand is ordered pursuant to the sixth sentence of 42 U.S.C. § 405(g).

 Claim for EAJA Fees

 After the consensual remand on the SSI claim, Ms. Bady prevailed at the administrative level. The ALJ issued a Recommendation dated January 31, 1989, finding Ms. Bady disabled as of April 9, 1985. The Appeals Council on February 21, 1989, issued the final administrative action in this claim and adopted the ALJ's Recommended Decision.

 After prevailing on remand, Ms. Bady's attorney, Frederick Daley, applied for an award of attorneys fees and expenses under the Equal Access to Justice Act ("EAJA"). See 28 U.S.C. § 2412(d). The EAJA provides in relevant part:

 (A) Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action (other than incurred by that party in tort) including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

 (B) A party seeking an award of fees and other expenses shall, within thirty days of final judgement in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection . . . .

 28 U.S.C. § 2412(d)(1)(A), (B)

 1. The EAJA Application Was Timely

 The first question this court must address is the question of whether Daley's application for EAJA fees was timely. This question is a jurisdictional question. See Damato v. Sullivan, 945 F.2d 982, 986 (7th Cir. 1991) (subject matter jurisdiction of the district court depends on timely filing of application). As quoted above, § 2412(d)(1)(B) requires that the application be made "within thirty days of final judgment in the action." In Melkonyan v. Sullivan, 115 L. Ed. 2d 78, U.S. , 111 S. Ct. 2157 (1991), decided after Mr. Daley's application, the Supreme Court ruled that the term "final judgment" referred exclusively to a judgment entered by a district court. In this case, this court never entered a judgment; following remand, the Secretary agreed with Ms. Bady's position. Neither the Secretary nor Ms. Bady had a need to return to the district court for entry of judgment.

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