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December 5, 1983

ROSALYN ZIMMERMAN, Plaintiff, against RICHARD SCHWEIKER, Secretary, H.H.S. Defendant.

The opinion of the court was delivered by: WEINSTEIN



 Plaintiff was denied disability benefits by the Secretary. This court reversed and ordered benefits. 42 U.S.C. §§ 416(i), 423. Plaintiff now applies for attorney's fees pursuant to the Equal Access to Justice Act. 28 U.S.C. § 2412(d). Since the government's position was unreasonable and without justification, fees are granted.


 Mrs. Zimmerman has endured pain and physical limitation for all of her adult life. At the age of 12, she had a low left thigh amputation as a result of a severe form of cancer. A prosthesis was fitted to the short stump that remained. Despite this sever handicap, she earned a master's degree and worked as an English teacher and guidance counselor.

 In October 1980, the plaintiff, then 56 years old, was hit by an elevator door at her high school. Thrown to the floor, she suffered a concussion, her prosthesis was broken and she injured her right knee, back and elbows.

 As a result of the accident, plaintiff has been suffering severe back pain. Her ability to move her lower torso and right knee is greatly limited. Refitting of her prosthesis was complicated by a steel support belt she must now wear that interferes with normal hip action, further restricting her movements. The brace causes pain and swelling in her right leg and makes any walking or climbing unbearably painful.

 In spite of these adversities, plaintiff tried to return to her job. Her unsuccessful attempts to work only exacerbated her condition. She was cautioned by her doctors to remain at rest.

 The Administrative Law Judge found plaintiff not disabled because her medical problems were "cured" and there was no recent medical evidence of pain. This finding is contradicted by the record which abounds with evidence of both harrowing pain and severe physical impairment.

 On two occasions, in May 1981 and August 1981, the Board of Education's Medical Bureau found that plaintiff was unable to move her right leg, trunk and shoulder without experiencing pain and that "forward flexation of the trunk was impossible due to pain." Dr. Nadar Sharon, a consultant to the Secretary, reported in September 1981 that plaintiff moves "with much difficulty and pain." Her treating physician, Dr. Joseph R. Van Dyne, reported similar findings. In June 1981, he reported that as a result of the 1980 accident, plaintiff "has considerable difficulty in walking" and was experiencing pain in her right leg. In August 1981, after plaintiff's claim was initially denied, Dr. Van Dyne wrote that she suffers "severe pain when she attempts to walk up or down a curb." The record also contains a letter from Dr. Leo J. Koven noting that x-rays indicate a "congenital disability unrelated to the accident of 1980," and would, "account for the right lower extremity radiation of her pain." Finally, a report by Dr. Koven dated December 1981, finds continued pain and predicts that plaintiff's "gait and prosthesis problem" will not materially improve in the future.

 Based on the record, the court reversed and remanded for computation of benefits. It is obvious that plaintiff is no malingerer. The refusal of the Secretary to grant benefits she was entitled to as a matter of law and fact imposed economic and emotional strain that certainly worsened when the government chose to litigate her action in this court.


 The Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A), provides that attorney's fees should be awarded to a prevailing party in an action by or against the United States "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." The Act is applicable to judicial review actions brought under the Social Security Act. See H. Rep. No. 96-1418 at 12, 1980 U.S. Code Cong. & Admin. News 4991; McGill v. Secretary of Health and Human Services, 712 F.2d 28, 30 (2d Cir. 1983); Guthrie v. Schweiker, 718 F.2d 104, 107 (4th Cir. 1983); Berman v. Schweiker, 713 F.2d 1290, 1295 (7th Cir. 1983); Ceglia v. Schweiker, 566 F. Supp. 118, 123 (E.D.N.Y. 1983); San Filippo v. Secretary of Health and Human Services, 564 F. Supp. 173, 176 (E.D.N.Y. 1983); Ocasio v. Schweiker, 540 F. Supp. 1320, 1323 (S.D.N.Y. 1982).

 An award of attorney's fees pursuant to the Act provides the incentive necessary to enable persons such as plaintiff to pursue benefits they legally deserve. See H. Rep. 96-1418 at 5-6, 1980 U.S. Code Cong. & Admin. News 4984. Fees will be awarded unless the government, which has the burden of proof on this matter, can show that its position was substantially justified or special ...

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