Joan PETRONE, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee

936 F.2d 428 34 Soc.Sec.Rep.Ser. 6, Unempl.Ins.Rep. CCH 16139A Joan PETRONE, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee. No. 89-55732. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 4, 1990. Decided June 14, 1991. John Ohanian, Los Angeles, Cal., for plaintiff-appellant. Jerry J. Bassett, Asst. Regional Counsel, San Francisco, Cal., for defendant-appellee. Appeal from the United States District Court for the Central District of California. Before WALLACE, Chief Judge, O'SCANNLAIN and RYMER, Circuit Judges. PER CURIAM: 1 Petrone timely appeals from a district court order denying his petition for attorney fees under the Equal Access to Justice Act, 28 U.S.C. Sec. 2412 (EAJA). The district court had jurisdiction pursuant to 42 U.S.C. Sec. 405 (g). We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 . Because we find Petrone is not a prevailing party within the meaning of the EAJA, we affirm. 2 * In 1966 and again in 1976, Petrone applied for disability insurance benefits and supplemental security income benefits. She was awarded these benefits and received them until December 1982, when the Secretary of Health and…

Petrone timely appeals from a district court order denying his petition for attorney fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (EAJA). The district court had jurisdiction pursuant to 42 U.S.C. § 405 (g). We have jurisdiction pursuant to 28 U.S.C. § 1291 . Because we find Pe-trone is not a prevailing party within the meaning of the EAJA, we affirm.

I

In 1966 and again in 1976, Petrone applied for disability insurance benefits and supplemental security income benefits. She was awarded these benefits and received them until December 1982, when the Secretary of Health and Human Services (Secretary) determined her eligibility had ceased. Petrone appealed to an administrative law judge, who affirmed the Secretary’s determination. The appeals council also affirmed, and Petrone then sought judicial review in the district court.

While her case was pending in the district court, Congress enacted the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460, 98 Stat. 1794 (Reform Act). The Reform Act required the district court to remand Petrone’s case to the Secretary for reconsideration in light of new eligibility standards. See id. at 1797-98…

dissenting:

I respectfully dissent.

I

As a general rule, disability benefits may be terminated when evidence shows that the disability has ceased. See 42 U.S.C. § 423 (f). Prior to 1980, the Secretary of the Department of Health and Human Services employed the “medical improvement” standard to make this determination; under this standard, the Secretary would not find that a disability had ceased unless the claimant’s condition had improved since the last determination of disability. Rhoten v. Bowen, 854 F.2d 667, 668 (4th Cir.1988). In 1980, the Secretary announced that he had abandoned the medical improvement standard and, in its place, established a “current disability” standard pursuant to which benefits were terminated if it was found, on the basis of new evidence, that the person was not presently disabled. Id.

Many Social Security disability benefit recipients filed suit in federal courts challenging the new regulations. See, e.g., Johnson v. Heckler, 606 F.Supp. 82 (S.D.N.Y.1984); Turner v. Heckler, 592 F.Supp. 599 (N.D.Ind.1984); Graham v. Heckler, 573 F.Supp. 1573 (N.D.W.Va.1983); Lopez v. Heckler, 572 F.Supp. 26 (C.D.Cal.1983). Thereafter, prompted at least partially…