author: SHOOB, District Judge.

text:
    Rafael FERNANDEZ-ROQUE, et al., Petitioners, v. William French SMITH, et al., Respondents. Moises GARCIA-MIR, et al., Plaintiffs, v. William French SMITH, et al., Defendants. Orlando CHAO-ESTRADA, Petitioner, v. William French SMITH, et al., Respondents.
    Civ. A. Nos. C81-1084A, C81-938A and C81-1350A.
    United States District Court, N.D. Georgia, Atlanta Division.
    Jan. 21, 1985.
    Deborah Ebel, Dale Schwartz, Myron Kramer, Kenneth Hindman, David Webster, Atlanta, Ga., for plaintiffs.
    Sharon Douglas Stokes, Larry D. Thompson, Atlanta, Ga., Lauri S. Filppu, Washington, D.C., for the government.
   ORDER

SHOOB, District Judge.

This order addresses what the immediate future holds for 147 Cubans who are currently detained at the Atlanta Federal Penitentiary.

BACKGROUND

These 147 Cubans were among the approximately 125,000 Cubans who left Cuba in 1980 via Mariel Harbor and who came to the United States. Although some of the 125,000 were detained, the vast majority of these “Marielitos” were released on “parole”; that is, they were permitted to live freely in American society instead of in detention camps and prisons.

Approximately 1800 of the Marielitos who were not released were transferred to the Atlanta Federal Penitentiary in 1981, and they were joined by other Marielitos over the next few years. Attorneys for the group brought this lawsuit as a class action, asking that these detainees be released on parole and that they be granted refuge and asylum in this country. See Fernandez-Roque v. Smith, 567 F.Supp. 1115, 1119-20 (N.D.Ga.1983), rev’d, 734 F.2d 576 (11th Cir.1984).

In August, 1981, this Court ordered the government to show cause why various subclasses of the group of Cuban detainees should not be released. Because the government could show no reason for continuing to detain certain Marielitos who clearly were not criminals or mental incompetents and who posed no threat to American society, this Court ordered their release. Fernandez-Roque v. Smith, 91 F.R.D. 239 (N.D.Ga.1981).

At the government’s request, however, on August 21, 1981 the Court modified this order to permit the government to conduct its own review of these detainees under a “Status Review Plan” approved by the Attorney General. Under the Status Review Plan, panels of government officials began to review each detainee’s case according to guidelines and procedures specified within the Plan itself. The standards approved by the Attorney General for determining whether a detainee is “releasable” are whether

(1) the detainee is presently a nonviolent person,
(2) the detainee is likely to remain nonviolent, and
(3) the detainee is unlikely to commit any criminal offenses following his release.

“Attorney General’s Status Review Plan and Procedures” at 4. If the detainee is deemed “releasable,” the Plan provides that the detainee

shall be paroled when a suitable sponsor or placement for him has been arranged.

(Emphasis added.)

Since the implementation of the Status Review Plan in 1981, the government’s review panels have directed the release of approximately 2700 detainees. Based on its understanding that the government would follow the standards and procedures approved by the Attorney General in his Status Review Plan, this Court has deferred to the decisions of the government’s review panels and, therefore, has entered no further orders of release. That understanding, however, is no longer accurate with respect to the 147 Cubans who are the subject of this order.

These 147 detainees were reviewed under the Attorney General’s Status Review Plan. Government officials who conducted these reviews have declared that these detainees are not dangerous to society and that each of the 147 detainees is entitled to be released on parole, provided that each has a suitable sponsor. Thirty-five of these detainees have acceptable sponsors. While this group of 35 awaited release, the government halted the release program, apparently as a result of its December 14, 1984 agreement with Cuba.

Although the government has stopped releasing detainees who have been approved for release, counsel for the government has informed this Court that the Status Review Plan remains “in effect.” Transcript of December 27, 1984 Hearing at 4. Subsequently, this Court ordered the government to show cause why these 147 detainees should not be released as soon as suitable sponsors were found. As is evident from the following discussion, the government has failed to show any good reason for continuing to detain these 147 persons, particularly those 35 detainees who have sponsors. Consequently, for the first time in over three years, this Court must order the release of a group of Cuban detainees: those 34 persons who seek release, who have been found “not dangerous,” and who have sponsors.

THE ORDERS TO SHOW CAUSE On January 7, 1985, this Court ordered the government to show cause (1) why those detainees already approved for release should not be released as soon as sponsors are located and approved, and (2) why the names of those detainees should not be released to counsel for plaintiffs. The parties submitted briefs that addressed not only the merits of the dispute but also this Court’s jurisdiction.

At a hearing on January 10, 1985, counsel for the government advised the Court that many of the 35 “releasable” Cuban detainees who had sponsors were dressed in civilian clothes, ready to leave the penitentiary, when the Commissioner of INS ordered that no Cuban detainees be released. In addition, counsel for the government stated that on January 9, 1985, the Attorney General issued a memorandum to the Commissioner of INS directing that the Status Review Plan remain in effect but that no Cuban detainees be released, pending a review of the Plan in light of the December 14, 1984 agreement with Cuba. Further, according to the government’s counsel, 40 of the 147 “releasable” detainees allegedly had committed a “prohibited act” inside the prison after they were approved for release, and the names of three detainees in this group had already been sent to the Commissioner for a decision whether to rescind approval for release. After hearing oral argument, the Court directed that although the government had produced no evidence that any of the 35 “releasable” detainees with sponsors had committed a prohibited act that would remove them from the “releasable” category, the government would be allowed several more days to produce specific evidence of misconduct by these 35 detainees.

Next, on January 11, 1985, at a hearing in chambers, counsel for the government advised the Court that several of the 147 “releasable” detainees had committed dangerous crimes in the United States, a further reason not to order the release of any of the group of 147.

Then, on January 11, 1985, this Court issued a further order to show cause. That order directed the government to produce “particularized evidence” of prohibited acts within the prison, crimes within the United States, or any other circumstances that would justify removing any detainee approved for release from the list of “releasables”. The order specified that plaintiffs’ counsel should receive any such evidence 24 hours in advance of a hearing set for January 16, 1985. This order also directed the government to show cause at that hearing

why as a result of the alleged commission of prohibited acts after they were placed on the release list, as set forth in the “Noonan affidavit”, or for any other good reasons not previously presented to the Court, any of the above 35 detainees approved for release who had approved sponsors should not immediately be released on parole to their sponsors, and why any of the above 112 detainees approved for release but who do not yet have sponsors should not be immediately released on parole as soon as sponsors are located and approved.

On the day before the hearing, counsel for the government provided certain documents to plaintiffs’ counsel, as required by the January 11 order, and also furnished the Court with a “courtesy copy” of the materials. These materials included declarations by Donald J. Young, an INS official, and William Noonan, Jr., Executive Assistant to the warden at the Atlanta Penitentiary. Accompanying these declarations were other documents under seal. Exhibits 1-4 concerned criminal activity by members of the group of 147 “releasables.” A crucial fact revealed by Young’s declaration is that all this information was known by government officials when these same officials approved the detainees for release. Exhibits 6-7 consisted of prison reports of the alleged “prohibited acts” within the prison by three “releasable” detainees with sponsors and by 24 without sponsors.

At the January 16, 1985 hearing on the January 11 further order to show cause, the Court questioned government counsel about exhibit 6, the reports of the following prohibited acts by three “releasable” detainees with sponsors:

1. Amores-Tores: possession of one marijuana cigarette on July 4, 1984 (approved for release October 4, 1984);
2. Suarez-Padilla: refusal to report for work on November 16, 1983; given two extra hours duty (approved for release September 20, 1984);
3. Suarez-Rodriguez: fighting with another detainee on May 28, 1984; commissary privileges restricted for four weeks (approved for release September 12, 1984).

Transcript at 15-16. Counsel for plaintiffs introduced evidence, unchallenged by the government, that the panels, which approved these detainees for release knew of these alleged infractions at the time of approval. Transcript at 26-27.

Apparently abandoning the government’s previous intimations that these detainees somehow no longer satisfied the standards for “releasability” under the Attorney General’s Status Review Plan, counsel for the government responded as follows:

We are not refuting the Attorney General’s or the Commissioner’s decision that these people are dangerous or not dangerous under the Plan. We are only suggesting now that the circumstances have changed with the agreement with Cuba. The Attorney General has the authority or other reasons outside of that plan to continue these people in detention.
The primary reason would be the fear of absconding, and that is what we submit, based on the legal authority for the Attorney General, would justify continuing these people in detention.

Transcript at 18.

The Court reiterated that the government had this opportunity to show any reason why these detainees might be considered dangerous and that the government had failed to do so. Counsel for the government replied that its prior submissions (Exhibits 1-6) constituted all the evidence in its possession which would indicate that any of these detainees were dangerous. Transcript at 19-20. Thus, the sole reason articulated by the government for continuing to detain these 147 persons was the government’s fear that these detainees would abscond.

Plaintiffs’ counsel assailed the government’s “fear of absconding” argument as well. Counsel pointed out that the government had produced no evidence to support this “subjective” fear. Transcript at 29-30. Counsel also noted that the government had failed to address specific criteria for measuring the likelihood of absconding, stated in Bertrand v. Sava, 684 F.2d 204 (2d Cir.1982). In response, counsel for the government argued that a case-by-ease determination of the likelihood of absconding is not required. The government’s counsel did admit, however, that the government had conducted no investigations into the likelihood that individual detainees would abscond, Transcript at 30; that she could produce no information about how many of the 2700 already released under the Status Review Plan had absconded, Transcript at 32; and that it was possible that these detainees would not be deported, if ever, before one and a half to two and a half years, Transcript at 22.

The Court concluded the hearing by ordering that the 34 “releasable” detainees who have sponsors and who seek release would be released “immediately”. The Court stated that it would allow the government four working days to make the necessary arrangements. Further, the Court stated that it would begin to hold hearings every ten days to two weeks concerning the release of any of the remaining 112 “releasables” who obtain sponsors; the first of these hearings was scheduled for January 30, 1985 at 3:00 p.m. The Court also denied the government’s motion to stay its order of release pending appeal.

The Court has stated previously in this nine-day process, which has involved two orders to show cause and several conferences with the parties, that if the Court orders the release of any detainee it would issue a written order addressing its jurisdiction, clarifying its December 4, 1984 order partially decertifying the class, and making appropriate findings. This order fulfills those purposes.

JURISDICTION

This Court concludes that it has jurisdiction to decide the issue of whether the Attorney General abused his discretion in refusing to release detainees who have been approved for release under the Status Review Plan and who have suitable sponsors, despite the existence of an agreement with Cuba for their eventual return to Cuba.

First, the original complaints filed in this case broadly allege that the Attorney General has abused his discretion in detaining plaintiff class members. Given the complexity of this case and the numerous issues that have evolved over the past four years because of changing circumstances, all of which this Court is intimately familiar with, this Court determines that a specific formal amendment to the original complaint is not required.

Second, the appeal that is presently pending in the Eleventh Circuit Court of Appeals (No. 84-8993) from this Court’s October 15, 1984 order does not deprive this Court of continuing jurisdiction over an entirely different issue. See United States v. Hitchmon, 602 F.2d 689 (5th Cir.1979) (en banc).

Third, this Court’s December 4, 1984 order, which partially decertified the Fernandez-Roque class solely on the issue of whether the Attorney General abused his discretion in denying parole to class members, does not deprive the Court of jurisdiction over the instant dispute. The plaintiffs’ claim of abuse of discretion that ultimately necessitated the partial decertification order arose in the context of plaintiffs’ Brief in Support of Habeas Corpus Petition, filed on November 15, 1982. That portion of the action was brought solely on behalf of those detainees who were denied approval for parole by the Attorney General.

In one order entered on July 7, 1983, 567 F.Supp. 1115, 1143-44 (N.D.Ga.1983), rev’d on other grounds, 734 F.2d 576 (11th Cir. 1984), and again in another order entered on August 28, 1984, this Court determined that the issue of “whether the Attorney General abused his discretion in denying parole to the currently detained class members could not be addressed on a classwide or subclasswide basis” and that, consequently, “plaintiffs wishing to raise this ‘abuse of discretion issue’ must do so in individual habeas corpus actions.” In its December 4, 1984 order, the Court ordered that only those “individual Cuban detainees who have been denied release on parole by the Attorney General are free to commence individual habeas corpus actions on the ‘abuse of discretion issue’ the Court directed that the action will “continue to be maintained as a class action with respect to all other issues previously raised by the pleadings.”

It was clearly this Court’s intent to decertify the class solely on the issue of whether there was an abuse of discretion with respect to those detainees who had not been approved for release under the Status Review Plan. The Attorney General’s refusal to release those who had been approved for release was not the subject of the December 4, 1984 decertification order. To eliminate any uncertainty or ambiguity that may exist about the meaning of the December 4, 1984 order, the Court hereby MODIFIES that order to include at the end of that order the following statement:

This December 4, 1984 order decertifies the class solely on the issue of whether the Attorney General abused his discretion as to those class members who were denied approval for release on parole; the class is not decertified on the issue of whether the Attorney General abused his discretion with respect to class members who have been approved for release on parole.

Finally, although plaintiffs in the past have raised the issue of abuse of discretion with respect to detainees who were approved for release but who remained imprisoned, 734 F.2d 576, 582 (11th Cir.1984), that issue was far different from the issues presented by the continued detention of these 147 “releasable” detainees. Since the present dispute arose only after the December 14, 1984 agreement with Cuba, plaintiffs could not have been expected to raise these issues before now.

FINDINGS

1. At present, the Attorney General’s Status Review Plan is still in effect. Although the terms of the Plan state that the Commissioner may suspend the Plan if it appears probable that many or all of the detainees can be returned to Cuba or to any other country, neither the Commissioner nor the Attorney General has suspended the Plan.

2. As mentioned above, on August 20, 1981, after the class was certified and several show cause hearings were held, this Court ordered the release of 381 Cuban detainees on parole to appropriate sponsors, holding that their continued detention was an abuse of discretion. On August 21, 1981, at the request of the government, this Court modified its August 20, 1981 order and indefinitely stayed all further show cause hearings in light of the government’s assurances that the Attorney General’s Plan was in operation and would result in the release of those detainees whom the government determined to be releasable. Femandez-Roque v. Smith, 91 F.R.D. 117, as modified, 91 F.R.D. 239 (N.D.Ga.1981).

3. Also as mentioned above, among the procedures approved by the Attorney General in his Status Review Plan is the following:

Any detainee whose release has been approved by the Commissioner, hereinafter referred to as “releasable” shall be paroled when a suitable sponsorship or placement for him has been arranged.

(Emphasis added.)

4. The Attorney General is refusing to release on parole to approved sponsors any of the 147 detainees approved for release under his Status Review Plan. Of this group, 35 detainees already had obtained sponsors when the government suspended all releases, and 34 of these still seek release. Efforts to obtain sponsors for the other 112 detainees continue. The Attorney General’s stated reason for refusing to release any of these 147 “releasable” detainees is that all of them are on the list of 2,746 to be deported and, therefore, may abscond. Yet because the agreement calls for the deportation of only 100 to 150 Cuban detainees each month, deportation for many may not occur for almost two and a half years. Moreover, deportation for class members may be delayed even longer, depending on the Eleventh Circuit Court of Appeals’ decision on the appeal of this Court’s October 15, 1984 order, and depending on the resolution of plaintiffs’ other pending claims.

5. In response to this Court’s order to show cause of January 7, 1985, and to this Court’s further order to show cause of January 11, 1985, the government has failed to produce any evidence to justify the continued detention of any “releasable” detainee who has a sponsor, even though the Court has provided the government with ample time and opportunities to do so: nine days, two separate show cause orders, and numerous conferences and hearings. None of the evidence submitted by the government .supports its earlier suggestions that these detainees were approved for release by panels that lacked knowledge of certain crimes or misconduct by the detainees. Moreover, the government has requested no extensions of time to produce more evidence.

Further, the government has offered no evidence whatsoever to support its position that the fear that these detainees might abscond justifies continued detention. In these lengthy show cause proceedings, this Court has not insisted on a case-by-ease assessment of the likelihood of absconding, but has insisted that the government produce some evidence to support its position.

6. For as long as the Attorney General’s Status Review Plan remains in effect, the Attorney General abuses his discretion if he fails to follow the standards and procedures specified within his own Plan. See Moret v. Karn, 746 F.2d 989 (3d Cir.1984); Shepherd v. Merit Systems Protection Board, 652 F.2d 1040 (D.C.Cir.1981); Piper v. Crosland, 519 F.Supp. 962 (E.D.N.Y.1981). If the terms of the Plan have any meaning, they must mean that if a detainee is found to meet the criteria for release, he must be released when a suitable sponsor is found.

7. If the Attorney General should suspend or cancel the Plan as a result of the December 14,1984 agreement with Cuba, it still may constitute an abuse of discretion for the Attorney General to refuse to release any “releasable” detainees in the absence of a finding that the detainee is likely to abscond if released, especially given that many of these “releasable” detainees might remain in prison for up to two and a half years before being deported to Cuba. Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958). The Court, however, need not decide this issue unless and until the Plan is suspended and releasable detainees are denied release to approved sponsors.

Accordingly, this Court ORDERS the release on parole of the 34 detainees who seek release, who have been approved for release, and who have sponsors. All 34 detainees in this group shall be released to their approved sponsors no later than 5:00 p.m. on January 22, 1985.

      . In fact, 20 detainees apparently had been issued civilian clothes and were dressed and ready to be released when the government suspended all releases.

      . Cuba agreed to accept the return of a group of 2746 Marielitos, at the rate of 100 to 150 each month, in exchange for the United States’ acceptance of 3000 political prisoners and their families, and up to 20,000 other Cuban immigrants each year. Based on the government’s responses to plaintiffs’ discovery requests, it appears that the sole criterion for inclusion on the “list” to be deported was whether that person was in custody on specified dates. See Defendants’ Response to Plaintiffs’ Seventh Interrogatories to Defendants. It also appears that all 147 detainees who are the subject of this order are on the list to be deported.

      . Apparently, one of the 35 detainees who have been approved for release and who have sponsors no longer seeks release.

      . This second issue was resolved when the parties later agreed that the government would furnish to plaintiffs’ counsel under seal the names of the 147 detainees at the Atlanta Penitentiary who have been approved for release and who are also on the list of 2,746 to be deported.

      . The affidavit of William Noonan, Executive Assistant to the Warden at the penitentiary, contained this information. This affidavit, however, did not make clear whether any of the "releasable” detainees who had been ready to depart the penitentiary were among this group of 40 who allegedly had committed a "prohibited act” after being approved for release.

      . Counsel for the government submitted no evidence at that time to support these contentions and stated that they had no knowledge of whether the Commissioner was fully aware of these alleged dangerous crimes at the time he approved these detainees for release.

      . These exhibits, however, did not identify which of the detainees mentioned were among the 35 who had sponsors or the 112 who had no sponsors.

      . Exhibit 5 was a list of the 147 "releasable” detainees with the dates of the review panel decisions approving their release.

      . In fact, the return of these detainees to Cuba under this agreement is not a certainty, given that the Eleventh Circuit Court of Appeals is presently reviewing this Court's October 15, 1984 order concerning plaintiffs’ asylum claims, and given that plaintiffs have raised other possibly valid claims which have not yet been litigated. Further, the Court points out that the United States Supreme Court recently has granted certiorari in Jean v. Nelson, — U.S. -, 105 S.Ct. 563, 83 L.Ed.2d 504 (1984), and thus within the next several months may clarify the rights of excludable aliens.

      . On appeal to the Eleventh Circuit are the issues of whether plaintiffs are entitled to asylum as a class, based on membership in the Freedom Flotilla, and whether this Court's order reversing the decision of the Board of Immigration Appeals and remanding the cases of all class members to the Board for reopened asylum hearings was correct. The issue addressed in this order has nothing to do with the asylum claim; this order addresses whether continued detention of class members approved for release under the Status Review Plan is an abuse of discretion.

      . Plaintiffs’ brief began as follows:
      The ultimate issue presented at this critical juncture of the litigation is the legality of the continued incarceration in a federal penitentiary of those class members who have been administratively determined not releasable under the Attorney General's Status Review Plan.

      . On December 4, 1984, this Court was not aware that an agreement with Cuba was forthcoming, or that those detainees approved for release would be denied release even though their actual deportation might not occur for almost two and a half years.

      . That issue was whether the Attorney General abused his discretion in refusing to resettle "releasable” Cuban detainees in Florida and in refusing to utilize individual, non-family sponsors.

      . The Court notes that whether a detainee is likely to abscond is not presently a criterion for determining "releasability” under the Plan.

      . Among their other pending claims, plaintiffs also have argued that the 147 releasable detainees have a federally created liberty interest in their release on parole, entitling them to a due process hearing before their release is denied, by virtue of the Attorney General's Plan. See, e.g., Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980).


source: Caselaw Access Project

author: PATRICK P. KELLY, District Judge.

license: Public Domain

text:
    Louis A. CLAASSEN, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services of the United States, Defendant.
    Civ. No. 84-1049-K.
    United States District Court, D. Kansas.
    Jan. 22, 1985.

      David H.M. Gray, Wichita, Kan., for plaintiff.
    Stephen K. Lester, Asst. U.S. Atty., Wichita, Kan., for defendant.
   MEMORANDUM AND ORDER

PATRICK P. KELLY, District Judge.

This is an action under 42 U.S.C. § 405(g) for judicial review of the Secretary of Health and Human Services’ decision to terminate Plaintiff’s Social Security benefits under the Social Security Act. Plaintiff moved for summary judgment and, in the alternative, for remand to the Secretary on the basis of new evidence. The Secretary moved for an order affirming the decision of the Secretary. Subsequently, the Secretary moved for remand.

Plaintiff, who is now 60, was found to be disabled in May, 1976 because of “a serious heart condition.” (R. 14) He was under the care of cardiologist William L. Hayes, M.D., who treated him for arteriosclerotic heart disease and two acute myocardial infarctions. The most recent was on May 10, 1976. Dr. Hayes reported in a June 7, 1976 letter: “I have advised him to retire for medical reasons, and I regard him as being totally disabled.” (R. 106; see generally R. 96-98, 102-115) This second heart attack was preceded less than a year before by a normal nine minute treadmill test. (R. 108) Plaintiff recovered from this heart attack, but

... since that time has suffered substernal pain and pressure accompanied by a heavy feeling in both arms. His symptoms are generally brought on by anxiety and mental stress and the patient believes that it would be brought on by physical exertion except that he has avoided such activity. The pain is immediately relieved by one nitroglycerin sublingually in approximately 30 seconds to one minute.

(R. 109) A catheterization revealed “severe three vessel coronary disease. Poor left ventricular function. Diskenetic apical segment of the left ventricle.” (R. 114) When four aortocoronary bypass shunt surgery (R. 139) was performed on August 1, 1976, a ventricular aneurysm was found, and a portion of his myocardium was resected. (R. 123)

During his first heart attack, Plaintiff also suffered a cerebral embolus, which was soon resolved. (R. 108)

When Plaintiffs disabled status was questioned by the administration, Dr. Hayes, who has been Plaintiffs cardiologist since 1972 (R. 31) reported on August 16, 1982:

I am including a copy of my office records for the past year concerning Louis Claassen. He continues under my care for arteriosclerotic heart disease with a previous myocardial infarction and aortocoronary bypass surgery done on August 1, 1976. His present medications include Lanoxin 0.25 milligrams daily and Nitroglycerin as needed. This program produces satisfactory control of symptoms on very light activity. I continue to regard him as completely disabled for any kind of work.

(R. 116)

Richard Spann, M.D. was particularly outspoken concerning Plaintiffs disability and the Secretary’s denial of benefits, in his November 3, 1982 letter:

I sincerely regret this hastily formed, ill conceived, and prejudicially derived decision. This man has been disabled since multiple myocardial infarctions and cardiac surgery and has continued to be so. Under no circumstances is he to return to occupation approaching that of what he had before. At the time of his surgery, ventricular aneurysm was found, a portion of his myocardium was then resected, and although he has fortunately been free of angina, his cardiac disease has in no way been reversed. He still has severe limitations, and I think the decision that you have rendered is totally false on his behalf.

(R. 123)

The angina which had abated when Dr. Spann wrote his letter had returned by the time Dr. Hayes wrote his second letter on October 7, 1983. Dr. Hayes reported:

As I have written in previous letters and reports, Mr. Claassen has been under my care for several years. He has been disabled by arteriosclerotic heart disease for most of this time. He has had acute myocardial infarctions in May of 1972 and May of 1976. He had four aortocoronary bypass shunts done in August of 1976. He remains, however, completely disabled for work by angina pectoris. His symptoms are controlled only be [sic] severe restriction of his activity which precludes any kind of gainful employment or any kind of physical or emotional stress. I want to emphasize that this disability is complete and permanent.

(R. 139) Plaintiff sees Dr. Hayes every three to four months. (R. 31)

On the basis of a seven and one-half minute treadmill test, the Secretary’s consultative physician concluded that Plaintiff had normal cardiopulmonary function. (R. 118)

This court has previously described the scope of review in Green v. Schweiker, 582 F.Supp. 786 (1984) at 789-790:

The standard of review in this case is established by 42 U.S.C. § 405(g), which provides that ‘the finding of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.’ Substantial evidence is such evidence as a reasonable person would accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).

In Arie v. Heckler, No. 82-1608 (D.Kan. July 15, 1983), the Court stated:

While it is not the duty of the Court to reweigh the evidence, the Court may not mechanically accept the findings of the Secretary, but must scrutinize the entire record to determine whether the conclusions reached are rational. Martin v. Schweiker [562 F.Supp. 912], No. 80-1423 (D.Kan. filed January 7, 1982). The Court cannot affirm the Secretary’s decision by isolating a few facts and calling them “substantial evidence.” Cline v. Califano, No. 78-4166 (D.Kan. August 31, 1979). In applying these standards, the Court must keep in mind that the purpose of the Social Security Act is to ameliorate some of the rigors of life for those who are disabled. Dvorak v. Celebreeze [Celebrezze], 345 F.2d 894 (10th Cir.1965).

Plaintiff, who was represented by an attorney at the initial administrative hearing, has submitted additional evidence that has not been previously submitted to the Secretary. This evidence consists of an additional letter from Dr. Haynes detailing a subsequent episode of congestive heart failure, a letter from Irvin R. Penner, a social worker who knows Plaintiff as a friend, and a neuropsychological evaluation. This additional evidence is offered in support of Plaintiffs motion for remand. Such evidence may only be considered if there is good cause for the failure to submit the evidence to the agency. This court concurs with a previous ruling of this court, which stated:

This Court has no difficulty concluding that good cause has been shown which warrants remand of this action for a further hearing. This Court fully realizes that iemand is proper where the proffered new evidence is deemed to constitute new and additional information for the record, Lucas v. Finch, 322 F.Supp. 1209 (S.D.W.Va.1970), where the new evidence is necessary to develop the required facts to determine the claim, Hupp v. Celebrezze, 220 F.Supp. 463 (N.D.Iowa 1962), and where the new evidence is required to be made a part of the record in order to afford the plaintiff a full and fair hearing. Hutchinson v. Weinberger, 399 F.Supp. 426 (E.D.Mich.1975).

Hayes v. Califano, D.Kan. unpub. No. 77-1082 at page 7.

Dr. Hayes’ letter reports developments in Plaintiff’s heart condition that had not occurred until after the opportunity had passed to inform the Secretary of them. Irvin Penner’s letter likewise describes subsequent events which confirm the seriousness of Plaintiff’s heart disease and reinforces Plaintiff’s credibility. The neuropsychological report, which was performed by Leslie Ruthven, a clinical psychologist, discloses a chronic brain syndrome with associated reduction of adaptive capacity. Dr. Ruthven concluded that, because of this impairment, Plaintiff

... cannot cope with or master the demands of gainful employment to any meaningful or productive degree. He has difficulty handling even a very low demand environment without experiencing distress.

This impairment has apparently existed for a substantial period of time. However, it was not known to Plaintiff or his attorney until after they obtained the results of Dr. Ruthven’s evaluation after all administrative appeals had been exhausted and after this action had been filed.

The process of discovering a condition such as chronic brain syndrome is haphazard at best. A condition that might be obvious to a trained clinical psychologist after administering a lengthy battery of tests may not be at all obvious to the person afflicted. Neither would such a condition necessarily be obvious to an attorney representing him. Neither Plaintiff nor his attorney can be faulted for not obtaining such an evaluation by any particular date. This new evidence would certainly be necessary “in order to afford the plaintiff a full and fair hearing.” Hayes v. Califano, supra.

Because of this court’s ruling, however, it is not .necessary to remand this case. The new evidence, though justifying a remand of this case, is not considered and is not a basis for the following ruling.

It is well accepted that substantial gainful activity means performance of a substantial service with a reasonable regularity. Broadbent v. Harris, 698 F.2d 407 (10th Cir.1983). See also Rivas v. Weinberger, 475 F.2d 255 (5th Cir.1973), where it was held that the ability to work only a few hours per day or the ability to work intermittently is not the ability to engage in substantial gainful activity. The court in Broadbent found that activities, which exceeded the activities plaintiff is able to perform, did' not form a basis for concluding that the claimant could perform substantial gainful activity. The Secretary has ignored the evidence as a whole and instead has selectively abstracted pieces of evidence favorable to her position. This practice was rejected in Green v. Schweiker, 582 F.Supp. 786 (D.Kan.1984) and Alvarez v. Califano, 483 F.Supp. 1284 (E.D.Penn.1980). See also 4 R.I.A. Social Security Coordinator § 30, 457. Yet the ALJ in his decision, and the Secretary in argument to this court, cite isolated activities, such as occasionally using a riding lawnmower for 45 minutes, while ignoring the fact that Plaintiff must rest after such activity. (See R. 32-33) In fact the few activities relied upon by the Secretary are the exception to Plaintiffs main activity of resting. (R. 33) Even playing five holes of golf requires one to two days to recover. (R. 34) The longest sustained light activity, such as riding a lawnmower, Plaintiff can tolerate is 40-45 minutes, which must be followed by rest. (R. 35-36)

A fair reading of Plaintiffs testimony would compel the conclusion that Plaintiffs heart disease has left him with no residual functional capacity to work. Such subjective evidence of the effect of the impairment on the individual claimant must be considered. Ber v. Celebrezze, 332 F.2d 293 (2d Cir.1964); Allen v. Weinberger, 552 F.2d 781 (7th Cir.1977); Ragsdale v. Secretary, Dept. of Health, Education & Welfare, 623 F.2d 528 (8th Cir.1980); and Broadbent v. Harris, 698 F.2d 407 (10th Cir.1983). See also CCH Unemployment Ins. Rep. § 15119.

The courts have always given great weight to the ALJ’s findings where credibility of witnesses is concerned. Where the ALJ does not fully believe Plaintiffs subjective testimony, however, he is required to make specific findings and state his reasons for disbelieving evidence or testimony supporting his belief. Marcus v. Califano, 615 F.2d 23 (2d Cir.1979); Scharlow v. Schweiker, 655 F.2d 645 (5th Cir.1981); Beavers v. Secretary of Health, Ed. & Welfare, 577 F.2d 383 (6th Cir.1978); Broadbent v. Harris, supra; and Little v. Schweiker, 555 F.Supp. 541 (N.D.Tex.1982). The ALJ in this case made no findings of credibility adverse to Plaintiff. Accordingly, his testimony must be taken as true.

The ALJ also selectively abstracted statements of Plaintiffs physicians to justify his adverse ruling. For example, the ALJ noted that Plaintiffs condition “appears reasonably stable” and that the “medical regimen that he was on satisfactorily controlled his symptoms.” (R. 15-16) A condition medically described as “stable” is not the equivalent of being able to work, and control of symptoms does not mean the underlying heart disease is no longer a constant threat to Plaintiffs life and a continuing impediment to work. These observations also ignore the fact that Plaintiff has achieved this status partly by severely restricting his activities. (R. 116) Another example of the Secretary’s selective abstraction of statements is the analysis at page 4 of the Secretary’s brief in which the Secretary’s attorney quotes Dr. Spann as saying Plaintiff is not “to return to an occupation approaching that of what he had before.” (R. 123) First, the Secretary’s attorney incorrectly attributes this statement to Dr. Hayes. Next the Secretary's attorney distorts its import. An important legal issue in the disability determination is whether the claimant can return to his previous occupation. A statement that Plaintiff can not do one thing does not imply that he can do other things. Finally, the overall import of Dr. Spann’s letter is that Plaintiff remains just as disabled as his second heart attack previously left him.

The only medical evidence which even appears to support the AU’s ruling is the seven and one-half minute treadmill test done by the Secretary’s consultative physician, Dr. Sifford, who has seen Plaintiff this one time only. Plaintiff correctly argues that:

The treadmill exercise electrocardiogram is the most sensitive noninvasive test commonly available for the evaluation of coronary artery disease. This test is negative in 35 percent of patients with very real coronary artery disease causing severe disabling angina pectoris.

1 Social Security Practice Guide § 9.02[4][a] (Matthew Bender 1984), citing The Merck Manual of Diagnosis and Therapy, § 1407 (Berkow 13th Ed. 1977) Likewise, it has been said by a Social Security consultative physician:

Exercise tests to diagnose heart disease aren’t perfect; they may look positive for abnormalities that aren’t really present, and they may look negative for abnormalities of the heart which really are present.

David A. Morton III, M.D., Medical Proof of Social Security Disability, (West 1983) at 108.

The Tenth Circuit follows the rule recognized in other circuits that the opinion of treating physicians deserve more weight than the opinion of consultative physicians. The court quoted from another jurisdiction in Broadbent v. Harris, supra, at 414:

[BJecause of the helter-skelter nature of the records in these cases, ... [courts must] not adopt the facile way of disposing of an injured applicant’s case by reference to, and reliance upon, the statements of one or two physicians, as against the considered statements of many physicians and surgeons who have had more opportunity of examining and treating the applicant, more occasions of making medical reports upon him, and more expertness in diagnosis .... Davidson v. Gardner, 370 F.2d 803, 823 (6th Cir., 1966).

This Court has also ruled that:

Of course, reports of government consultative physicians who examined plaintiff only once, are accorded little weight, especially when they are inconsistent with reports of treating physicians. Broadbent v. Harris, supra; McCoy v. Schweiker, 683 F.2d 1138 (8th Cir.1982).

Espinosa v. Secretary of Health & Human Serv., 565 F.Supp. 810 (D.Kan.1983) at 813.

The agency in this case has apparently departed from its previous well advised policy:

S.S. Disability considers the claimant’s treating doctor to know more about his chest pain than anyone else, since that doctor usually knows the claimant better.

David A. Morton III, M.D., Medical Proof of Social Security Disability, (West 1983) at 105.

Expert opinions of a treating physician as to the existence of a disability are binding on the fact finder unless contradicted by substantial evidence to the contrary. Broadbent v. Harris, supra; Bastien v. Califano, 572 F.2d 908 (2d Cir.1978); Gold v. Secretary of Health, Education and Welfare, 463 F.2d 38 (2d Cir.1972); Eiden v. Secretary of Health, Education and Welfare, 616 F.2d 63 (2d Cir.1980); Branham v. Gardner, 383 F.2d 614 (6th Cir.1967); Aubeuf v. Schweiker, 649 F.2d 107 (2d Cir.1981); and Hankerson v. Harris, 636 F.2d 893 (2d Cir.1980). It cannot be said that one negative treadmill test by a consultative physician who has seen Plaintiff only that one time constitutes substantial evidence. Even if such tests were more definitive, the overwhelming medical evidence is to the contrary. This negative treadmill test is particularly nondiagnostic in this case because the history shows a previous negative treadmill test less than one year before Plaintiff’s most serious heart attack. (R. 108) It is also significant that the consultative physician elected not to push Plaintiff beyond the normal results obtained partly because of his “extensive prior difficulties.’’ (R. 118)

In view of the foregoing evidence, the ALJ’s ruling must be characterized as a hastily formed, ill conceived, and prejudicially drawn decision. The only way this decision could be supported would be to start from the premise that the agency is bent upon defeating the Plaintiff’s disability claim rather than making an impartial inquiry. Far from the liberal construction of the statute and regulations that is required, the ALJ either wholly ignored the reports or the physicians or was so inept that he failed to appreciate what the physicians reported. It is an understatement to say that there is no substantial basis for the Secretary’s decision.

The Secretary’s motion for remand requires only brief comment. The Secretary has moved to remand on the authority of Section 2(a), (b), and (c) of the Social Security Disability Benefits Reform Act because of the new standard for determining continuing disability in cases involving medical improvement. This new law sets forth a standard that is more beneficial to the Plaintiff than the previous standard applied by the Secretary despite its universal rejection by the courts. This Court has ruled that Plaintiff is entitled to benefits under the law as it existed prior to the passage of the Reform Act, which in effect requires the Secretary to follow the law that had already been established in the federal courts. No useful purpose could be served by remanding for the Secretary to consider Plaintiffs claim again under a more liberal standard. Plaintiff has been without benefits since December, 1982. This Court will not impose upon Plaintiff the further delay that a remand would cause in view of Plaintiff’s obvious disability and, entitlement to benefits.

IT IS THEREFORE ORDERED that the Secretary’s decision be reversed. The Plaintiff’s motion for summary judgment is granted and the Secretary’s motions for an order affirming the Secretary’s decision and to remand are denied. This case is remanded with instructions to award Plaintiff disability insurance benefits including all past benefits that should have been paid since his improper termination.


author: GLASSER, District Judge:

text:
    Grace GALLO, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    No. 83 Civ. 4305.
    United States District Court, E.D. New York.
    Jan. 22, 1985.
    John E. Kirklin, Director of Litigation (Nancy Morawetz, of counsel), Civil Appeals and Law Reform Unit, The Legal Aid Society, New York City, Arthur J. Fried, Supervising Atty., Administrative Law Unit, The Legal Aid Society, New York City, for plaintiff.
    Asst. U.S. Atty. Thomas B. Roberts, Eastern Dist. of N.Y., Brooklyn, N.Y., for defendant.
   MEMORANDUM AND ORDER

GLASSER, District Judge:

On an earlier motion for judgment on the pleadings in this action, the Court reversed the Secretary’s denial of plaintiff's application for Widow’s Disability Benefits under Title II (“Title II benefits”) and Supplemental Security Income (“SSI”) benefits. Judgment was entered directing the payment of benefits. Defendant now moves under Rule 59 for an order modifying the judgment to change the manner in which retroactive benefits are calculated. For the reasons that follow, defendant’s motion is granted.

Background

Under the earlier order entered in this case, the Secretary is directed to pay Title II benefits retroactive to the date of the death of plaintiff’s husband. The order also required that the Secretary pay SSI benefits, retroactive to the date plaintiff submitted her SSI application, for any period in which income and resources, including any Widow’s Disability benefits due under the Court’s order, rendered her eligible for SSI benefits. Plaintiff received public assistance benefits from New York during the period for which she is to be awarded retroactive benefits, but the amount of such public assistance is not revealed in either of the parties’ papers. Defendant alleges that plaintiff signed an agreement authorizing the Secretary to make withholdings from retroactive SSI benefits to reimburse the state for public assistance payments. Plaintiff asserts that she has no recollection that she signed such an agreement. The defendant’s new proposed order would require that the Secretary “pay” [calculate] the appropriate retroactive SSI benefits and then subsequently “pay” [calculate] the appropriate retroactive Title II benefits.

Discussion

This motion concerns the interplay of three provisions of the Social Security Act which defendant contends produce an inequitable result in this case if the Secretary calculates retroactive Title II benefits before calculating retroactive SSI benefits.

Section 1382(c) of Title 42 of the United States Code provides that an individual’s eligibility for SSI benefits for any month “shall be determined on the basis of the individual’s ... income, resources, and other relevant characteristics in such month.” This section has been interpreted to require that benefits be based on income actually received during the relevant quarter. 20 C.F.R. §§ 416.200; 416.1123(a) and (d). Thus, if a Title II payment was made in a given month, that payment would be considered income in determining the eligibility for SSI in that month. If a Title II payment was not actually received in that month, but was awarded later, retroactively to that month, the SSI payment already received would not be reduced by the Title II award. For example, if claimant “X” received a $300 SSI payment for the month of April 1983 and in June 1984, a $200 Title II benefit was awarded retroactively for April 1983, the $300 SSI payment would not be reduced by the retroactively awarded Title II benefit.

For such situations, § 1320a-6 specifically provides that retroactive Title II benefits shall be adjusted for SSI benefits previously paid for the same month. See also 20 C.F.R. § 416.1123(d). For example, in the illustration above, assume that the $200 Title II benefit was actually paid and received in April 1983. That money, being income, would have reduced the amount of the SSI benefit payable to X. When awarded retroactively, the Title II benefit will be reduced by the amount for which the SSI benefit would have been reduced had the Title II payment actually been made in April 1983. Section 1320a-6 thus prevents a claimant from enjoying a “windfall” of duplicative benefits under both SSI and Title II where the SSI benefits were calculated without considering income later awarded under Title II. This current version of § 1320a-6 does not provide for a similar adjustment where retroactive Title II benefits are paid before a retroactive SSI award. Consequently, the section was recently amended to provide for such an adjustment for SSI benefits payable retroactively after February 1, 1985.

When SSI benefits are not paid when due by the Secretary, the state may provide interim financial assistance by way of public assistance payments. If SSI payments are later awarded retroactively, 42 U.S.C. § 1383(g)(1) provides that the Secretary may, upon written authorization from the claimant, withhold from the retroactive SSI benefits an amount sufficient to reimburse the state for interim assistance furnished to the claimant. This provision applies only to SSI benefits; there is no similar provision for Title II benefits.

The potential interaction of these three sections in the context of this case is well illustrated by three examples described by defendant in her Memorandum of Law:

Assume that during February 1983 claimant received $200 in public assistance from New York, that she is now entitled to $400 for that month in retroactive Title II benefits under this court’s order and that she is entitled to up to $300 in retroactive SSI benefits for that month under this court’s order. First, assume that the Title II benefits are paid before the SSI benefits. Plaintiff will have received $200 from the State and will receive an additional $400 under Title II. The $600 received exceeds the $300 monthly income guaranteed by SSL However, because plaintiff actually received only $200 during February 1983 and SSI guarantees receipt of at least $300 during the month, § 1382(c)(1) requires that plaintiff be paid an additional $100 of SSI under the Court order. The state will receive reimbursement through § 1383(g)(1) of the $200 remaining on plaintiff’s SSI award. This is the result that the Court’s current order will impose upon the Secretary.
However, for a second example, if the SSI benefits are paid before the Title II benefits, the result is different. Again, plaintiff has received $200 from the state. Pursuant to § 1383(g)(1), the Secretary will reimburse the state for the $200 of public assistance and pay the remaining $100 of the SSI benefits due to plaintiff. The total of public assistance and the SSI payment for the month is then equal to the intended amount of $300. With regard to the Title II benefits, under § 1320a-6 the total of $300 of SSI benefits paid to claimant and the state will be offset against the $400 payable under Title II, resulting in an additional payment of only $100 to plaintiff under Title II. This is the result that the Secretary believes is appropriate in this case.
A third result is obtained if the Court’s present order is followed to the letter. Again, plaintiff has received $200 from the state. She is now entitled to $400 in Title II benefits under this court’s order. The $600 received exceeds the $300 monthly income guaranteed by SSL Accordingly, plaintiff would have no benefits due under the SSI award because of the offset provision in paragraph 4 of the order. (The offset provision however violates § 1382(c)(1). However, because there would be no benefits due under SSI, the state would receive no reimburement under 42 U.S.C. § 1383(g)(1).
The difference between the three approaches is that under the first approach, plaintiff receives $700 and the state is reimbursed for its $200. Under the second approach, plaintiff receives $400 and the state is reimbursed for its $200. Under the third approach, plaintiff receives $600 and the state is not reimbursed.
* * * * * *
Had plaintiff received the proper Title II and SSI benefits in the month of February 1983, the state would never have paid claimant public assistance. Instead, the claimant would have either gotten $300 from SSI and $100 from Title II (under the set-off in § 1320a-6) or $400 under Title II and nothing under SSI (because she would have excessive income to receive SSI). Thus, if the payments had been made contemporaneously, plaintiff would have received only $400 a month and the state would have incurred no expense. The problem with the first example is that it grants plaintiff a windfall at the expense of SSI. The problem with the third example is that it grants plaintiff a windfall at the expense of the state.

Defendant’s Memorandum at 6-9.

Defendant’s argument, as indicated in the above-quoted portion of her brief, is that under the present order and current version of § 1320a-6, plaintiff will enjoy a “windfall” in that she will receive SSI benefits she would not otherwise have received if her Title II benefits had been paid month by month as due. This is because the retroactive Title II benefits will not be applied, pro rata, month by month, to reduce the retroactive SSI awards, and because of the loophole in the present § 1320a-6, the retroactive Title II award calculated first under the Court’s order cannot be used to offset the award of retroactive SSI benefits. Defendant argues that this “windfall” would be avoided if SSI benefits were calculated first and Title II benefits calculated second, because an appropriate offset for the improperly inflated' SSI benefits could then be made under the current version of § 1320a-6.

In support of her argument that the Court’s order should be modified, defendant cites the legislative history to § 1320a-6, which reveals the clear congressional intent that appropriate offsets should be made between Title II and SSI benefits to avoid such “windfalls”. The Senate Report to the original § 1320a-6 states that

an individual’s entitlement under [SSI and Title II] shall be considered as a totality so that payment under either program shall be deemed payment under the other if that is subsequently found to be appropriate. Thus, if payment under Title II is delayed so that a higher payment is made under Title XVI [SSI], the adjustment made in the case of any individual will only be the net difference in total payment.

S.Rep. No. 408, 96th Congress 2d Sess., at 78 (1980), reprinted in 1980 U.S.Code Congress and Administrative News 1277, 1356. The House Report to the recently amended § 1320a-6 reiterates the Senate’s statement of intent with respect to the original § 1320a-6:

Present Law

The SSI statute contains provisions aimed at ensuring that an individual’s entitlement under the Old-Age, Survivors, and Disability Insurance [Title II] and Supplemental Security Income (SSI) programs do not result in windfall benefits. Under present law, [Title II] benefits that are paid retroactively following the initial determination of eligibility are reduced by the amount of any excess SSI benefits that have been paid because the [Title II] benefits have been received in a lump sum rather than in the months when regularly payable.
House Bill
No provision.
Senate amendment
Amends the present law requirement to allow the adjustment of benefits in additional situations:
(1) in the case where retroactive [Title II] benefits are paid before the SSI benefits, but for the same period, the retroactive SSI amount otherwise payable would be reduced by the amount that would not have been paid had [Title II] been paid when regularly due;
* * * * * *
Conference agreement
The conference agreement follows the Senate amendment.

H.R.Rep. No. 861, 98th Congress, 2nd Sess., at 1391 (1984), reprinted in 1984 U.S.Code Cong. & Admin.News, - at -.

Plaintiff raises two arguments in opposition. First, plaintiff notes that 42 U.S.C. § 407 bars the assignment of Title II benefits to creditors. Plaintiff contends that the calculation of SSI benefits before the calculation of Title II benefits, with the attendant reimbursement of the state from the SSI benefits under § 1383(g)(1), will result in an assignment of Title II benefits to a creditor — the state. Plaintiff’s argument is not persuasive, however, because even if the Secretary first calculated SSI benefits, then reimbursed the state, and then calculated Title II benefits (offset by the SSI benefits under § 1320a-6), the reimbursement would be made from SSI benefits, not Title II benefits. I believe the correctness of this result is demonstrated by the practical reality that the plaintiff would receive exactly the same net amount of benefits under this arrangement as she would have received if she were paid Title II and SSI benefits as they were due. Plaintiff is actually arguing that she should be paid full SSI and Title II benefits, and then not reimburse the state for interim benefits that would never have been paid if the SSI and Title II benefits were paid when due.

Plaintiffs second argument is that there is no statutory authority for offsetting retroactive Title II benefits against retroactive SSI benefits paid concurrently to the plaintiff. Specifically, plaintiff argues that the present § 1320a-6 does not authorize offsets against Title II benefits where retroactive Title II and SSI benefits are ordered concurrently. The current § 1320a-6 applies to individuals “with respect to whom supplemental security income benefits were paid under [Title] XVI for one or more months ... and ending with the month before the first month in which such benefit is paid ...” (emphasis added). Plaintiff maintains that in the present case, since Title II and SSI benefits are being awarded, concurrently, SSI benefits were not “paid” before Title II benefits, and therefore § 1320a-6 does not apply. Defendant contends that the section requires that SSI benefits have been paid for one or more months, not in those months, and therefore § 1320a-6 applies whenever SSI benefits were paid in any amount of time before Title II benefits. Defendant persuasively argues that the reference in § 1320a-6 to the “first month in which such benefit is paid,” “makes it clear that the drafters understood the difference between months for which benefits are paid and the months in which benefits are paid.” Defendant’s Memorandum at 12 n. 2.

In support of her argument, plaintiff cites two cases holding that where retroactive SSI and Title II benefits are awarded concurrently, the Secretary must compute and pay Title II benefits before paying SSI benefits. Burnett v. Sec’y, HHS, 563 F.Supp. 789 (W.D.Ark.1983); Carlisi v. Sec’y, HHS, 583 F.Supp. 135 (E.D.Mich.1984). Both of these decisions relied on the “were paid” language discussed above. These decisions do not, however, control in the present case. First, in both cases, the Secretary was calculating the relative proportion of SSI and Title II benefits in a retroactive award for the sole purpose of fixing attorneys’ fees under 42 U.S.C. § 406. The apportionment of a benefits award between SSI and Title II was critical in those cases because attorneys’ fees can only be awarded from Title II benefits. There is no provision for the award of attorneys’ fees from retroactive SSI benefit awards. Neither Burnett nor Carlisi involved the calculation of the actual amounts of money paid to the plaintiffs. “That the Secretary is entitled to recover overpayments in SSI benefits by reducing presently payable disability benefits is not at issue. The problem rather is using the overpaid SSI benefits as an offset against the figure used to determine fees payable to claimant’s attorney.” Burnett, 563 F.Supp. at 790. In both cases, the courts were concerned that using the offset formula in § 1320a-6 to reduce the amount of Title II benefits from which attorneys’ fees are calculated would discourage representation of social security claimants. Burnett, 563 F.Supp. at 793; Carlisi, 583 F.Supp. at 138. That is not a concern in this case, where the court is calculating only the actual amount of money to be paid to the plaintiff. Secondly, both Burnett and Carlisi were decided before the passage of the amended § 1320a-6. The new section clearly reflects the intent of Congress that concurrent benefits be offset against one another to avoid duplicative payments, regardless of whether the SSI or Title II benefits are calculated first. I therefore do not believe that plaintiff’s contention, that § 1320a-6 is inapplicable to awards of “concurrent” SSI and Title II benefits, is persuasive.

In conclusion, there is no clear statutory guidance on whether the SSI or Title II benefits should be calculated first in the present case. There is, however, very clear expressions of congressional intent to avoid “windfalls” in retroactive benefit payments, as reflected in both the original § 1320a-6, and the amendment of that section to close the loophole implicated in the present case. As discussed above, the challenged order and judgment do produce a windfall by ordering that Title II benefits be calculated before SSI benefits. Fairness dictates that the plaintiff receive no more in retroactive benefits than she would have received if benefits were paid when due. This result will be achieved under defendant’s proposed order.

Plaintiff in effect concedes that the pror visions of the existing order, if applied under the current version of § 1320a-6, will produce an inequitable windfall for plaintiff in contravention of congressional intent. In a footnote to her memorandum, plaintiff states that she “would have no objection to a revision of the Court’s order making plaintiff’s retroactive SSI benefits payable on February 1, 1985 [the effective date of the amended § 1320a-6], so as to accomodate [sic] congressional intent and the Secretary’s concern that she would otherwise be required to calculate retroactive SSI payments as though plaintiff were not eligible for Title II in that period.” Plaintiff’s Memorandum at 11, n. 5.

Plaintiff has not offered any authority for deferring the award of benefits under the existing order until after the new statute takes effect. Furthermore, if the Court did defer the effective date of the existing order, the windfall caused by the calculation of SSI benefits as if no Title II benefits had been awarded would indeed be eliminated, but another windfall for plaintiff would be created. Under such an arrangement, plaintiff’s Title II benefits would be calculated first, and then the SSI benefits would be calculated and offset by amounts that would not have been awarded if plaintiff had been paid benefits when due. The result would be that of the total amount of benefits awarded, a relatively large proportion of those benefits would be designated as Title II benefits and a relatively small proportion of the benefits would be designated as SSI benefits. This could potentially produce a pool of SSI benefits that is too small to fully reimburse the state, by withholding benefits pursuant to § 1383(g)(1), for interim public assistance benefits, paid to plaintiff by the state, that would not have been paid if plaintiff had received her Title II and SSI benefits when due. The net result would be that plaintiff would have received these interim benefits, and then would receive the Title II and SSI benefits without a full adjustment for the interim benefits already paid to plaintiff.

This windfall would be avoided under the Secretary’s proposed order, regardless of whether benefits are calculated under the current or amended § 1320a-6. Under the proposed order, SSI benefits would be calculated first, and then the Title II benefits would be calculated and offset by amounts that would not have been paid if plaintiff had received the benefits when due. The result would be that a larger proportion of total benefits awarded would be designated as SSI benefits than would be so designated under the arrangement proposed in plaintiff’s footnote five. From this larger pool of SSI benefits, the state could receive a greater amount of reimbursement under § 1383(g)(1) for interim benefits paid to plaintiff. The net result would be that, if the state were fully reimbursed, plaintiff would receive “in pocket” the exact amount she would have been paid if her Title II and SSI benefits were paid when due — that is, •plaintiff would receive the state interim benefits already paid, plus the Title II and SSI benefits due, reduced by the amount of those interim assistance benefits.

As discussed above, there is no clear statutory guidance as to whether the Title II or SSI benefits must be calculated first when making concurrent awards of benefits. In light of the congressional intent to avoid “windfalls” in the payment of retroactive benefits, I conclude that the Secretary’s proposed order will best accomplish the goals of Congress. Defendant’s motion under Rule 59 to amend the Court’s judgment in this case is, therefore, granted.

It is hereby ordered that the order of this Court dated October 31, 1984, be modified as follows:

(a) Paragraphs 3 and 4 of the order are deleted; and

(b) The following paragraphs are substituted in the order:

“3. The Secretary is directed to pay plaintiff appropriate Supplemental Security Income benefits retroactive to January 19, 1982. The Secretary shall pay these benefits within sixty days of the date of this amended order; and
4. The Secretary is directed to subsequently pay appropriate Widow’s Disability benefits retroactive to January 2, 1982.”

      . The Court’s Order of October 31, 1984 provides:
      1. The Secretary’s decision denying plaintiff’s claims for Widow’s Disability and Supplemental Security Income benefits is reversed; and
      2. The Secretary is directed to make benefits available to the plaintiff within 15 days from the date of this order, and to provide plaintiff with Medicare coverage as required under 42 U.S.C. Sec. 426(b); and
      3. The Secretary is directed to pay plaintiff Widow’s Disability benefits retroactive to January 2, 1982, the date of her husband’s death. The Secretary shall pay these benefits within sixty days of the date of this order; and
      4. The Secretary is directed to pay plaintiff Supplemental Security Income benefits retroactive to January 19, 1982 for any period in which her income and resources, including any Widow's Disability benefits due under paragraph 3 of this order, rendered her eligible for such benefits, and in which she met all other eligibility requirements for Supplemental Security Income benefits.

      . The defendant’s proposed order provides, in pertinent part:
      3. The Secretary is directed to pay plaintiff appropriate Supplemental Security Income benefits retroactive to January 19, 1982. The Secretary shall pay these benefits within sixty days of the date of this order; and
      4. The Secretary is directed subsequently to pay appropriate Widow’s Disability benefits retroactive to January 2, 1982.

      . Section 1382(c) refers to the criteria for determining eligibility for SSI benefits in any given month. The Secretary’s regulations indicate, however, that the Secretary determines eligibility on a quarterly basis. See 20 C.F.R. § 416.-200.

      . Section 1320a-6 currently provides:
      Notwithstanding any other provision of this chapter, in any case where an individual—
      (1) makes application for benefits under subchapter II of this chapter and is subsequently determined to be entitled to those benefits, and
      (2) was an individual with respect to whom supplemental security income benefits were paid under subchapter XVI of this chapter ... for one or more months during the period beginning with the first month for which a benefit described in paragraph (1) is payable and ending with the month before the first month in which such benefit is paid pursuant to the application referred to in paragraph (1),
      the benefits (described in paragraph (1), which are otherwise retroactively payable to such individual for months in the period described in paragraph (2) shall be reduced by an amount equal to so much of such supplemental security income benefits ... described in paragraph (2) for such month or months as would not have been paid with respect to such individual or his eligible spouse if the individual had received the benefits under subchapter II of this chapter at the times they were regularly due during such period rather than retroactively____

      . The amended § 1320a-6 provides:
      (a) notwithstanding any other provision of this Act, in any case where an individual—
      (1) is entitled to benefits under Title II that were not paid in the months in which they were regularly due; and
      (2) is an individual or eligible spouse eligible for supplemental security income benefits for one or more months in which the benefits referred to in clause (1) were regularly due, then any benefits under Title II that were regularly due in such month or months, or supplemental security income benefits for such month or months, which are due but have not been paid to such individual or eligible spouse shall be reduced by an amount equal to so much of the supplemental security income benefits, whether or not paid retroactively, as would not have been paid or would not be paid with respect to such individual or spouse if he had received such benefits under Title II in the month or months in which they were regularly due.

      . This loophole is. closed in the amended § 1320a-6.

      . For attorneys who successfully represent Title II claimants in court actions, a court may award attorneys’ fees of up to twenty-five percent of the total of the past due Title II benefits. 42 U.S.C. § 406(b).

      . The parties advised the court that they have already agreed upon the amount of attorneys’ fees to be awarded in this case.

      . Plaintiffs argument that § 1320a-6 does not authorize offsets where Title II and SSI benefits are awarded concurrently, which was rejected earlier in this opinion, has absolutely no basis under the amended § 1320a-6. Plaintiff relied on the “benefits were paid" language in the current § 1320a-6 to support the argument that the section only applied where SSI benefits were actually paid during the retroactive period. There is no such "were paid” language in the amended § 1320a-6.