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November 9, 1983

MARGARET M. HECKLER, Secretary of Health and Human Services

Alfred L. Luongo, United States District Judge.

The opinion of the court was delivered by: LUONGO

On May 12, 1983, I adopted the Report and Recommendation of Magistrate Richard A. Powers, III and granted plaintiff's motion for summary judgment in his suit to overturn the termination of his Supplemental Security Income (SSI) benefits. There is now before me plaintiff's petition for attorney's fees under the Equal Access to Justice Act, 28 U.S.C. ยง 2412(d). For the reasons discussed below, I will deny the petition.

 Plaintiff, a 52 year old male, had been found eligible for SSI benefits in March, 1978 as a result of a disability described as a lumbar nerve root compression. Plaintiff's back problems were caused by an automobile accident which occurred in 1976. Prior to that time, plaintiff had worked as a self-employed painter and paperhanger. (Magis. Rep. at 2). In September 1980, the Social Security Administration determined that plaintiff's disability had ceased as of August of that year. (Magis. Rep. at 1). After a hearing on May 27, 1981, an Administrative Law Judge (ALJ) determined that plaintiff was not disabled because he retained the residual capacity to perform light work. (Tr. 13). Review was denied by the Appeals Council, and a petition challenging the Secretary's action was filed in this court.

 Approving the Report and Recommendation of Magistrate Powers, I granted summary judgment in plaintiff's favor. In so ruling, I found that the Secretary's decision holding plaintiff not disabled was not supported by substantial evidence. *fn1" In reaching this conclusion, I relied on both the medical reports submitted by physicians who examined plaintiff and plaintiff's testimony before the ALJ.

 The medical reports submitted with respect to plaintiff's physical condition indicated that he did not have the capacity to engage in substantial gainful employment. In a report dated October 10, 1979, Dr. John Sbarbaro stated that plaintiff complained of pain in his spine and legs, and that his condition had gotten progressively worse since his lumbar laminectomy and disc excision in 1978. Dr. Sbarbaro commented that plaintiff appeared "to be in constant pain and [that] his rather dramatic stiffness in his low back is characteristic of either a degenerative process or a chronic inflammatory process of the low back." Based on his examination of the plaintiff, which was arranged by the Secretary, Dr. Sbarbaro concluded that plaintiff "may well be permanently disabled." (Tr. at 134).

 Dr. Martin Blaker, a physician selected by the Social Security Administration, also filed a report. His report indicated that plaintiff was physically capable of "flexion of the lower back," and that he could perform "a full range of squatting." (Tr. at 139). Nevertheless, Dr. Blaker recorded that plaintiff complained of pain in his neck, lower back, and legs. In view of plaintiff's claims of pain and his previous back surgery, he diagnosed plaintiff as "status post lumbar laminectomy and disc excision," and concluded that plaintiff "should restrict his activities generally, as regards the lower back." (Tr. at 139).

 A third medical opinion was rendered by Dr. Pushpa Thakarar of the Hospital of the University of Pennsylvania. Dr. Thakarar diagnosed conditions of "chronic arachnoiditis and degenerative joint disease" as well as "chronic cervical strain." (Tr. at 178). These conclusions were based on symptoms of pain in plaintiff's neck which radiated to his shoulder blades, constant pain in the lumbar region of plaintiff's lower back which radiated to both legs, and plaintiff's inability to walk in excess of 2 or 3 blocks. (Tr. at 177). On the basis of his findings, Dr. Thakarar concluded that plaintiff should be "restricted from any activities which require movement of the cervical and lumbar spine area," such as "pushing, pulling, bending, prolonged sitting as well as prolonged standing . . . ." (Tr. at 178).

 In addition to the medical reports, two psychological evaluations of plaintiff were presented to the ALJ. Dr. Napoleon Vaughn, a psychologist, determined, after a battery of psychological tests, that plaintiff was not eligible for social security benefits on the basis of psychological criteria alone. Although he stated that plaintiff, because of his lack of reading and mathematical skills, was an "academic cripple," Dr. Vaughn reasoned that plaintiff's intelligence was within the normal range, and that he was competent to manage his own funds. (Tr. at 175). Dr. Vaughn did, however, strongly recommend a psychiatric evaluation.

 The psychiatric evaluation was performed by Dr. Lance Wright. Dr. Wright found plaintiff to be alert and without "gross cognitive disorder." (Tr. at 184). Dr. Wright, however, reported that plaintiff has engaged in little activity since his automobile accident, and that he has been depressed and, at times, thought of suicide. (Tr. at 183). Dr. Wright found that plaintiff continued to suffer from the effects of his automobile accident, and concluded that he suffered from a major affective disorder, recurrent depression, and alcohol abuse. (Tr. at 184).

 Plaintiff's testimony before the ALJ focused on his back problems and inability to work. In large measure, plaintiff's testimony concerning his ailments corroborated the medical analyses submitted to the ALJ. Plaintiff testified that he continued to suffer pain in his back, legs, buttocks, and arms. He stated that he had spasms in his buttocks, and that his pain intensified when he sat down, particularly on hard chairs. Plaintiff testified further that his right leg was weak, and that he lost his balance and had fallen when too much weight was placed on his right leg. (Tr. at 39-40). Plaintiff testified that he had submitted an application for vocational rehabilitation to the J.F.K. Center so that he could become qualified to work as a tailor. Indeed, at first plaintiff stated that he thought he could handle such a job, but when pressed by the ALJ, he testified that he could not perform a tailor's duties in his physical condition at that time. (Tr. 61-62).

 On the basis of all the evidence presented, the ALJ held that plaintiff, notwithstanding the restrictions on his back movement, retained the residual capacity to perform light work, and terminated plaintiff's SSI benefits. On appeal, I adopted Magistrate Powers' recommendation that I find that the ALJ's decision was not supported by substantial evidence, and I ordered the benefits reinstated.

 Having successfully challenged the Secretary's termination of his SSI benefits, plaintiff now moves the court to award attorney's fees under the EAJA. The Secretary does not dispute that attorney's fees may be awarded under the EAJA for suits arising under the Social Security Act. *fn2" Nor does the Secretary argue that plaintiff has not incurred legal expenses within the meaning of the Act. *fn3" The Secretary contends simply that her position in this case was "substantially justified."

 Under the Equal Access to Justice Act, Congress ordered that the government pay the attorney's fees of litigants that prevail against the United States except under certain circumstances. Section 2412(d)(1)(A) of the Act provides:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the ...

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