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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. 41*41 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.


823 F.2d 40 (1987) Delia E. ROSADO, Plaintiff-Appellant,


Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant-Appellee.

No. 950, Docket 86-6258.

United States Court of Appeals, Second Circuit.

Argued March 16, 1987.

Decided July 16, 1987.

New York Law School location: File #350, Box #119