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Rosado v. Bowen

decided: July 16, 1987.

DELIA E. ROSADO, PLAINTIFF-APPELLANT,
v.
OTIS R. BOWEN, M.D., SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT-APPELLEE



Plaintiff, who partially prevailed on disability claim after remand to the Secretary for a second hearing, appeals from an order of the United States District Court for the Eastern District of New York (Weinstein, Ch. J.) denying her application for attorney's fees under Equal Access to Justice Act. Affirmed.

Author: Miner

Before: KAUFMAN, MINER and MAHONEY, Circuit Judges.

MINER, Circuit Judge:

Delia E. Rosado appeals from an order of the United States District Court for the Eastern District of New York (Weinstein, Ch. J.) denying her application for attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (1982 & Supp. III 1985) ("EAJA"). Rosado claimed entitlement to both social security disability benefits and social security supplemental income. After a hearing before an Administrative Law Judge ("ALJ"), her claims were denied by the Secretary of Health and Human Services (the "Secretary"). Rosado then brought suit in the district court, which appointed counsel and remanded for a second hearing. After new medical evidence was presented documenting her impairments, a second ALJ ruled that Rosado was disabled, having met the requirements set forth in the Obesity Listings, 20 C.F.R. §§ 404.1501 et seq., app. § 10.10 (1986), but as of more than two years later than she had alleged. Rosado thereafter sought attorney's fees as a prevailing party under the EAJA. The district court denied her application, finding that the Secretary's position at the first hearing was substantially justified.

Because documentation of the severity of Rosado's medical complaints was lacking until the second hearing, we hold that the Secretary's initial position was substantially justified, and we therefore affirm.

I. BACKGROUND

Delia E. Rosado applied for social security disability insurance benefits on September 28, 1982, alleging disability due to cardiac arrythmias and high blood pressure, and for supplemental security income benefits on May 24, 1983, alleging disability due to arthritis, headaches and a cardiac condition. She alleged a disability onset date of January 31, 1981. Both applications were denied initially and upon reconsideration by the Secretary of Health and Human Services.

At a hearing on September 12, 1983, ALJ Manuel Taxel received medical records into evidence and questioned Rosado, appearing pro se, on her medical and vocational history. On February 24, 1984, the ALJ issued his decision. While he found that Rosado suffered from a number of ailments, including serious weight problems, he concluded that Rosado retained the capacity to work as a sewing machine operator, and ruled that she was not disabled. The Appeals Council subsequently concluded that there was no basis to grant her request for review of the ALJ's determination.

On June 22, 1984, Rosado commenced an action in the United States District Court for the Eastern District of New York. The district court appointed counsel and remanded the action to the Secretary for reconsideration. At the second hearing, new evidence was introduced, including additional clinical findings from her treating physician, Dr. Brutus, a medical report from a consulting physician, Dr. Lazarus, testimony from the medical adviser to the ALJ, Dr. Wagman, and new x-ray evidence. In his report, Dr. Brutus diagnosed diabetes with related arterial insufficiency, venous insufficiency and edema, and arthritis of the knees and spine. He noted that these conditions resulted in a functional limitation: sitting for any period of time would be painful unless Rosado's legs could be elevated. Dr. Lazarus, in his report, diagnosed coronary artery disease, hypertension, diabetes mellitus and arthritis in multiple joints, noting that an "X-ray of [Rosado's] knee shows generalized osteoporosis and mild osteoarthritis." He concluded that Rosado's "most severe impairment results from pain and decreased motion of the cervical spine and the major weight bearing joints." Dr. Wagman testified that, in light of the new x-ray evidence of osteoarthritis and osteoporosis involving the knees, Rosado met the disability criteria of section 10.10(A) of the Obesity Listings. 20 C.F.R. §§ 404.1501 et seq., app. § 10.10(A) (1986). In addition, Rosado testified as to her pains, physical restrictions, and ambulatory difficulties.

Based on this evidence, the ALJ ruled that Rosado had been disabled since March 31, 1983. In concluding that the requirements of section 10.10(A) were satisfied, the ALJ emphasized Dr. Wagman's testimony that Rosado's obesity "was associated with arthritic involvement in a weight bearing joint with pain and limitation of motion." The ALJ also found that Rosado met the requirements of section 10.10(D) -- obesity coupled with chronic venous insufficiency and persistent edema. Rosado has not sought judicial review of the determination that she was disabled only as of March 31, 1983.

Rosado thereafter applied for attorney's fees under the EAJA, 28 U.S.C. § 2412(d)(1)(A). The district judge denied her application on October 2, 1986, stating:

It is true on the record at the first administrative hearing it was not possible to say that another view couldn't be taken. For that reason I did appoint counsel. I can't say that had the administrative law judge made further inquiry he would have developed the same record that was developed with counsel. It is just too speculative.

District Court Transcript at 8. This ...


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