8 Soc.sec.rep.ser. 176, Unempl.ins.rep. Cch 15,680griffen Cook, Appellant, v. Margaret Heckler, Secretary of Health and Human Services, Appellee, 751 F.2d 240 (8th Cir. 1984)

By now it is clear that a prevailing party may recover attorney fees and costs under the EAJA where the position of the government was not substantially justified. Cornella v. Schweiker, 728 F.2d 978 (8th Cir. 1984). However, for purposes of an attorney fee award under EAJA it is not enough for a Social Security claimant to have won a remand to the Secretary for further administrative proceedings on the merits. It is the receipt of those benefits that renders a typical Social Security claimant a prevailing party. Brown v. Secretary of Health & Human Services, 747 F.2d 878 (3d Cir. 1984); McGill v. Secretary of Health & Human Services, 712 F.2d 28, 32 (2d Cir. 1983). Cf. Hanrahan v. Hampton, 446 U.S. 754, 100 S. Ct. 1987, 64 L. Ed. 2d 670 (1980).

We join the Second and Third Circuits and thus hold that appellant here may not recover attorney fees and costs under the EAJA since he is not a "prevailing" party within the contemplation of that Act.

However, since Cook did win the appeal to the extent of securing a reversal and remand, he may recover the costs of the appeal as those costs are specifically allowable by statute or rule of court. See 28 U.S.C. § 2412(a); FRAP 39; 28 U.S.C. § 1920; Cornella v. Schweiker, 741 F.2d 170, 172 (8th Cir. 1984). In all other respects the application for attorney fees and costs must be denied.