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September 24, 1985

MARGARET HECKLER, Secretary of Health and Human Services

The opinion of the court was delivered by: POLLAK


 This is a motion by plaintiff Maria Ciarlante for an award of attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(A) (1982) (repealed 1984). The motion follows this court's entry of an Order, on April 18, 1985, pursuant to a Report and Recommendation of Magistrate Hall, reversing a decision of the Secretary of Health and Human Services (the "Secretary") and directing an award of benefits to plaintiff. In the pending motion plaintiff contends that because she was a "prevailing party" within the meaning of the EAJA and because the Secretary did not have a substantial justification for agency and litigation positions, she is entitled to attorney's fees under the act. The Secretary does not contest the plaintiff's status as prevailing party but does argue that the government's position was substantially justified.

 I turn first to an analysis of the facts of record, then to a discussion of the applicable law defining substantial justification, and finally to an examination of whether in the instant case the Secretary's position met this standard.


 The plaintiff is a sixty-six year old woman who was born in Italy on October 31, 1921. Administrative Record at 35. Her command of English is not good. She has worked as a nurse's aid in Italy for thirty-one (31) years and in this country from 1973 until 1981. Id. at 35, 102. This job seems to demand a considerable amount of physical exertion: the plaintiff has been required to stay on her feet for an entire working day and to help lift patients. Id. at 36.

 Plaintiff has been unable to work since July of 1981 Id. at 37. She complains of pains in her face, back, hips, knees, ankles, feet, and elbows. Id. She is able to bathe and dress herself, but she cannot fix her own meals. Id. at 40. She is unable to do many household chores; she often has trouble climbing the stairs; and she spends most of the day watching television and reading Italian books. Id. at 41-42.

 Plaintiff filed concurrent applications for disability and supplemental security benefits on November 27, 1981, alleging an injury to the coccyx and to her kidney. These applications were denied initially and upon reconsideration. Id. at 65-83.

 With respect to the medical evidence of record, there first is a report dated February 23, 1982, of a Dr. G.E. Gonzalez, M.D. Id. at 114-17. While the doctor found that the "spine showed normal curvature" and that there were "no areas of injury" to the neck, he also noted that "the neck showed moderate restriction to any conscious motion or manipulation" and the "range of motion" of the spine was "diminished." Id. at 116. His diagnosis included three findings: hypertension, arthritis, and bladder prolapse with a secondary hematuria (the presence of blood in the urine). The doctor found her condition "fair except for the bladder prolapse," which in his view a surgical procedure would control. Id. at 117. Moreover, an x-ray of the plaintiff's spine taken on February 15, 1982, was normal. Id. at 120.

 On March 24, 1982, plaintiff was admitted to the West Jersey Hospital because of severe abdominal pain and signs of peritonitis. Id. at 125. She underwent exploratory surgery, at which time she was found to have a perforated diverticulitis, a condition caused when small pockets in the wall of the colon fill with stagnant fecal material and become inflamed. A temporary colostomy was performed. Id. An x-ray taken at this time revealed calcified stones in the gall bladder. Id. at 129. At the request of the Disability Determination Division, Dr. Theodore A. Lyras, M.D., the physician treating the plaintiff during her stay at West Jersey, submitted a report stating that he had diagnosed the plaintiff as suffering from acute sigmoid colon and diverticulitis with pelvic abscess. Id. at 150.

 Dr. Michael J. Hicks, M.D., performed an examination on the plaintiff on June 10, 1982. Id. at 152-53. His impression was 1) that the plaintiff suffered from a "degenerative joint disease primarily involving ankles, with a mild to moderate ambulatory impairment with prolonged walking"; 2) "exogenous obesity"; 3) "status post recent colostomy secondary to diverticulitis"; and 4) "hypertension and cholecystitis by history." Id. at 153. In addition, Dr. Hicks found the plaintiff's range of motion "full overall" but her "hand function" "somewhat impaired, as evidenced by decreased grip strength bilaterally." Id.

 Plaintiff was again hospitalized on July 14, 1982, to close the colostomy, a procedure that she tolerated well. Id. at 162. On November 22, 1982, plaintiff was admitted to the hospital for elective surgery because of gallbladder disease. Id. at 173. Her stay in the hospital was prolonged because of a complaint of pain in her right upper quadrant. This was diagnosed as intercostal neuralgia and the plaintiff was released for outpatient care.

 Dr. B. A. Tomassetti, M.D., submitted a physical capacities evaluation on December 12, 1982. Id. at 175. He found that the plaintiff could sit, stand, or walk for only two hours out of an eight-hour work day. Moreover, he found that she could occasionally carry up to 10 lbs. He also found that while she could use her hands for simple grasping and fine manipulations, she could not use them for pushing and pulling. Furthermore, he diagnosed her as not being able to use her feet to operate foot controls. Finally, he concluded that she could not squat and climb at all, and she could only occasionally bend, crawl, and reach above shoulder level.

 Dr. John Antolik, M.D., made similar assessments as to the plaintiff in a report dated April 21, 1983. Id. at 178. Dr. Antolik, who is the plaintiff's last treating physician, submitted another report, dated May 3, 1983, in which he described the plaintiff's overall condition. Id. at 179. In this report, he pointed out that the plaintiff suffered from a ventral abdominal hernia as of her last visit. He mentioned that he has prescribed various drugs for her complaints of pain and lack of sleep. He stated that she cannot stand for more than 15 minutes at a time, cannot walk for more than a block, and cannot hold any object over 10 lbs. He also noted that she suffers from hypertension and diverticulitis, for which he has also administered drugs. In his opinion, the plaintiff will be hospitalized in the future.

 On April 21, 1983, the Administrative Law Judge ("ALJ") held a hearing on plaintiff's claim and heard testimony from the plaintiff and her daughter-in-law. In a decision entered on August 4, 1983, the ALJ denied plaintiff's request for disability and supplemental security income benefits.

 In his evaluation of the evidence, the ALJ noted that the key question was whether the claimant had a severe impairment, which would mean one that significantly limited the "claimant's ability to perform basic work related functions for a period of 12 continuous months." Id. at 14. Symptoms, he noted, could not alone determine disability, but medical signs and findings would have to ...

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