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MASON-PAGE v. BOWEN

March 2, 1987

DORIS MASON-PAGE (QUACKENBUSH) Plaintiff,
v.
OTIS R. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant



The opinion of the court was delivered by: SAROKIN

 SAROKIN, District Judge.

 Plaintiff is presently awaiting a final decision from the Secretary on her application for disability benefits following a remand order by this Court dated June 12, 1984. Plaintiff now moves for an order granting interim benefits pending that final decision, on the grounds that the Secretary has unreasonably delayed decision in this matter. *fn1"

 BACKGROUND

 Plaintiff filed her initial application for benefits on May 19, 1981, claiming total disability due to arthritis, phlebitis, and pain. After an adverse determination by the Appeals Council, plaintiff brought suit in this court pursuant to 42 U.S.C. ยง 405(g) for review of the agency's decision.

 While the federal suit was pending, plaintiff initiated a second disability application in April 1983. On June 7, 1984 Administrative Law Judge Greenridge issued a decision recommending that plaintiff be found disabled. The Appeals Council determined that absent additional testimony by a vocational expert as to the number of jobs claimant was capable of performing, it was unable to adopt the June 7, 1984 disability recommendation.

 On June 12, 1984 this court remanded the original matter to the Secretary for further fact-finding. The Appeals Council consolidated its remand of the June 7, 1984 disability determination with this court's remand and reassigned the matter to ALJ Fliegler. A hearing on the outstanding fact issues was not held until June 5, 1985; a delay of nearly 12 months.

 As a result of scheduling difficulties, the unavailability of medical advisors and the intervening amendment of the Mental Impairment Listings, Section 5 of the 1984 Disability Amendments, in August 1985, which necessitated that plaintiff submit to additional psychiatric examinations pursuant to the new guidelines, the second day of hearings was not held until February, 18 1986.

 In March 1986, plaintiff was notified that her testimony from this February hearing had been lost as a result of an inaudible tape recording. At this juncture, ALJ Fleiger recused himself from further consideration of the matter and in April 1986 the case was reassigned to ALJ Bracken.

 A hearing before ALJ Bracken was held on June 6, 1986. Plaintiff's counsel moved to have the previously tape recorded testimony of her treating physician, Dr. Chaney, admitted for the information of the agency's physicians and vocational expert present. A disagreement arose as to the propriety of such admission, resulting in further adjournment. Another hearing scheduled for August 8, 1986 was cancelled due to a death in claimant's family. Hearings resumed on September 11, 1986 and concluded on October 10, 1986.

 On November 7, 1986 ALJ Bracken issued a decision recommending that plaintiff be entitled to a period of disability commencing on July 1, 1982. This recommendation is now pending before the Appeals Council awaiting final disposition.

 DISCUSSION

 I. JURISDICTION

 As a preliminary matter, the Secretary's memorandum of law has taken the position that this Court is barred from awarding interim benefits under Title II of the Social Security Act in this case, since the Act provides no authority which ...


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