(1st Cir. 1987). The McCuin court asserted; "No other tribunal would be permitted to announce to a party that it has made a decision but that it reserves the right to change its mind for a period of four years. Such a "decision" gives with one hand what it takes away with the other. In effect, it signifies nothing other than that a final decision will not occur for at least four years." Id. at 173.
Finally, we find it unjust to hold the plaintiff to the Secretary's interpretation which is in no way based on clear and unambiguous regulatory language. While the Secretary's interpretation of the regulations usually deserves great deference, U.S. v. Larionoff, 431 U.S. 864, 872, 53 L. Ed. 2d 48, 97 S. Ct. 2150 (1977), no deference is warranted where that interpretation is plainly inconsistent with the language of the regulation. Id. at 872-73; South Georgia Natural Gas Co. v. Federal Energy Regulatory Comm'n., 699 F.2d 1088, 1090 (11th Cir. 1983).
We recognize that the Secretary's position has been adopted in other jurisdictions. See Fox v. Bowen, 835 F.2d 1159, 1163 (6th Cir. 1987); Cieutat v. Bowen, 824 F.2d 348, 357 (5th Cir. 1987); Zimmerman v. Heckler, 774 F.2d 615, 617 (4th Cir. 1985); Munsinger v. Schweiker, 709 F.2d 1212, 1216 (8th Cir. 1983); Gerstein v. Bowen, 680 F. Supp. 1200, 1208-09 (N.D. Ill. 1988). See also Butterworth v. Bowen, 796 F.2d 1379, 1385-86 (11th Cir. 1986) (reopening by the Secretary permitted but only by a component of the Social Security Administration with jurisdiction of the claim at the time of reopening). However, we respectfully disagree with these decisions. They rely to a great extent on the observation that there are provisions in 404.988 which only the Secretary is likely to raise in an attempt to reopen a case. See, e.g., Munsinger, 709 F.2d at 1215; Gerstein, 680 F. Supp. at 1208. While this may be true, we find it difficult to conclude that this fact requires the reopening provisions, as written, to be available to the Secretary. We will follow what we perceive to be the only reasonable reading of the Secretary's regulations.
We find that the Secretary may not on his own initiative reopen a disability determination. Therefore, the Secretary here improperly reopened the ALJ's decision of August 24, 1983. That determination must stand as the final and binding determination of the Secretary and thus the plaintiff is entitled to disability benefits as of October 23, 1979. We will grant the plaintiff's motion for summary judgment and deny the Secretary's motion for summary judgment.
An appropriate Order will issue.
AND NOW, to wit, this 2nd day of June, 1988, it is ORDERED, ADJUDGED and DECREED that;
1) the plaintiff's Motion for Summary Judgment be and hereby is GRANTED;
2) the defendant's Motion for Summary Judgment be and hereby is DENIED;
3) the defendant be and hereby is DIRECTED to cease its attempt to recover $ 27,143.40 from the plaintiff;
4) the defendant be and hereby is DIRECTED to reimburse the plaintiff a sum computed by multiplying $ 55.50 times the number of months that the defendant commenced reducing the plaintiff's monthly payments; and
5) the defendant be and hereby is DIRECTED to compute the amount of benefit payments to be made to the plaintiff in accordance with the Administrative Law Judge's decision of August 31, 1983, and to immediately commence issuing said benefits payments.
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