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HOLST v. BOWEN

June 13, 1986

DONALD L. HOLST, Plaintiff,
v.
OTIS R. BOWEN, Secretary of Health and Human Services, Defendant


Robert J. McNichols, United States District Judge.


The opinion of the court was delivered by: MCNICHOLS

Robert J. McNichols, United States District Judge

ORDER

 By order entered November 29, 1983 this matter was remanded for reconsideration in light of certain specified authorities. *fn1" Administrative proceedings have now been concluded and the matter is once again before the Court on the parties' cross-motions for summary judgment.

 The supplemental record reflects a unique approach on the part of the ALJ in that he first acknowledged the Court's directions as set forth in the above-referenced order of remand, and then deliberately refused to abide by such directions on the basis that the Court was wrong:

 
* * * *
 
The Appeals Council Remand Order states that upon remand the undersigned is to apply the case law contained in Morrison v. Heckler, 582 F. Supp. 321 (W.D. WA 1983) and the case law contained in Patti v. Schweiker, 669 F.2d 582 (9th Cir. 1982). Patti, stands for the proposition that benefits, once begun, can only be ceased after a showing of medical improvement. The District Court felt that Patti applied to a "closed period". The undersigned notes that even a casual reading of Patti, shows that, for the medical improvement standard to apply, one must have a final unappealed decision of the Secretary that the claimant was once disabled. This situation does not exist in a closed period case when the original decision of the Secretary has not become final and binding on the parties due to the appeal. The claimant has no final decision whereby Patti can operate. Furthermore, Patti should not be read as mandating the government perpetuate error. Patti is silent on the issue of reopening and revising prior determinations that were in error. . . . The undersigned is convinced that to base a decision on medical improvement, in this case, would be grossly unjust.

 Tr. 199-200.

 With that, the ALJ proceeded through the steps of a full sequential analysis, and based on prodigious new evidence taken during the supplemental proceedings, held that claimant was not then disabled, and never had been.

 The apparent theory is that Patti and progeny are inapplicable by virtue of some transmutation whereby the final decision of the Secretary affirming ALJ Baloun somehow became "unfinal" upon being appealed. *fn2" No one appealed that portion of the decision which held that claimant fully met the disability requirements for the closed period. The unambiguous tenor of the order of remand necessarily assumed the validity of the finding that claimant was disabled between August 10, 1978 and March 1, 1981. The fact of Mr. Holst's disability during that period thereby became the law of the case and not subject to tampering in further administrative proceedings. *fn3" Hooper v. Heckler, 752 F.2d 83, 88 (4th Cir. 1985); see also, Mefford v. Gardner, 383 F.2d 748, 756 (6th Cir. 1967); Carrillo v. Heckler, 599 F. Supp. 1164, 1168 (S.D. N.Y. 1984); Brown v. Schweiker, 557 F. Supp. 190, 194 (M.D. Fla. 1983).

 As observed by the Mefford Court:

 
The Hearing Examiner was bound to obey the directions of the mandate without variation; and failure to follow the instructions therein given was error. He failed to follow the instructions of the District Court, and, instead, introduced a mass of evidence with the purpose of holding, contrary to the decision of the District Court, that appellee was not suffering from a heart condition which prevented him from carrying out the work in which he was previously engaged. In so doing, and in creating a new case, the Hearing Examiner committed error.

 383 F.2d at 756; see generally, Valdez v. Schweiker, 575 F. Supp. 1203 (D. Colo. 1983).

 Where the district court is itself in error, the Secretary is not without remedies. Hooper, supra, 752 F.2d at 88; Valdez, supra, 575 F. Supp. at 1205. Among those remedies, however, is not the option of simply ignoring the mandate, nor, as in ...


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