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DA THI THACH v. SHALALA

March 30, 1994

DA THI THACH, Plaintiff,
v.
DONNA E. SHALALA, Secretary of Health and Human Services, Defendant.



The opinion of the court was delivered by: LOWELL A. REED, JR.

 Reed, J.

 This is a case involving an individual's right to supplemental security income ("SSI") benefits based her alleged disability under the Social Security Act. 42 U.S.C.A. § 1381 et seq. (West 1991). Plaintiff Da Thi Thach filed a claim against defendant Donna Shalala, Secretary of Health and Human Services (the "Secretary"), seeking a review of the Secretary's decision denying her claim for supplemental security income benefits. *fn1"

 Currently before me are plaintiff's motion to amend her complaint (Document No. 13) and defendant's motion to remand this matter so the Secretary of Health and Human Services can take additional administrative action (Document No. 16). This Court has jurisdiction of plaintiff's claim pursuant to 42 U.S.C.A. § 405(g) (West supp. 1993). For the reasons stated below, I will grant plaintiff's motion and deny defendant's motion.

 I. BACKGROUND

 This action is an appeal from a decision of the Secretary denying plaintiff's application for SSI benefits under the Social Security Act. On May 19, 1988, plaintiff filed her original application for SSI benefits claiming that she had been disabled since May 1987. Her application was denied administratively and she sought judicial review, filing a complaint in this Court on March 14, 1991. On January 8, 1992, pursuant to a stipulation of the parties, the case was remanded back to the Secretary for additional evidence pursuant to the sixth sentence of 42 U.S.C. § 405(g), under which this Court retained jurisdiction of the case. *fn2" See Austin v. Shalala, 1994 U.S. Dist. LEXIS 523, 1994 WL 14576 at * 1 (D. Kan. Jan. 14, 1994). On remand, the Secretary assigned plaintiff's case to ALJ Theodore Stephens to conduct a new hearing.

 On June 16, 1993, following a new hearing, ALJ Stephens issued a decision denying plaintiff's claim that she was "disabled" as the term is defined in the Social Security Act, 42 U.S.C. § 1381 et seq.3 This became the final decision of the Secretary on August 15, 1993, when the Appeals Council failed to take jurisdiction of the case. See 20 C.F.R. §§ 416.1484(b), (c) and (d), 404.984(b), (c) and (d); plaintiff's memorandum in support of her motion to amend complaint ("plaintiff's memorandum") at 2. On October 6, 1993, plaintiff filed a motion to amend her complaint and shortly, thereafter, defendant responded by filing a motion to remand.

 II. DISCUSSION

 A. Plaintiff's motion to amend complaint

 Plaintiff has filed a motion for leave to amend her complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure with an attached copy of the proposed amended complaint. Rule 15(a) governs a plaintiff's motion for leave to amend a complaint. According to the Rule,

 Fed. R. Civ. P. 15(a). Here, defendant's responsive pleading has been served, so the inquiry focuses on the second sentence of the above provision.

 Courts apply a liberal standard to motions filed pursuant to Rule 15(a) and, therefore, they look approvingly upon plaintiffs' requests to amend. See United States v. Shaner, 1992 U.S. Dist. LEXIS 8996, 1992 WL 154572 at * 2 (E.D. Pa. June 16, 1992). The Supreme Court has set forth the standard to be applied to a motion for leave to amend a complaint pursuant to Rule 15(a):

 
If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claims on the merits. In the absence of any apparent or declared reason -- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of ...

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