medical evidence on how her medicine might be affecting her.
The court disagrees. The Secretary satisfied his duty to develop the record. A hearing was held at which Ms. Bady and a corroborating witness testified before an ALJ. The written record contained over one hundred pages of exhibits, including medical records and the written reports by three treating physicians (Doctors Vincent Sahig, R.S. Dahiya and B.P. Raja Gowda), one doctor who examined Ms. Bady at the Secretary's request (Dr. Richard Gainey) and two physicians who rendered opinions at the Secretary's request (Doctors Albert T. Kwedar and Virgilio R. Pilapil). Furthermore, in view of the ALJ's documented reasons for doubting Ms. Bady's credibility, the ALJ acted reasonably in not hiring a physician to look into her complaint. The court notes that Bady's request for more evidence was dated February 26, 1986, eight days after the hearing at which the ALJ observed her demeanor, heard her inconsistent testimony and evaluated her credibility. Moreover, Bady's request was quite broad and did not direct the ALJ to the possible need to inquire more closely as to the side effects of her medicine. To the extent that Bady's request could be narrowed to particular matters, it was a request that x-rays be taken and that the Secretary consider whether certain Listings were met.
Ms. Bady also argues that the Secretary's agreeing voluntarily to remand the SSI claim for "further development of vocational evidence, a consultative examination, and receipt of such evidence as proffered by Plaintiff," see Secretary's "Agreed Motion" of September 17, 1987 P4, provides objective evidence that the Secretary's initial position at the administrative level was not substantially justified. In support, Bady cites Pierce v. Underwood, 487 U.S. 552, 560, 101 L. Ed. 2d 490, 108 S. Ct. 2541 (1987), in which the Supreme Court agreed with the parties that courts may rely on objective indicia in determining whether or not the government's position was substantially justified.
The Secretary's agreeing to remand the SSI claim was apparently part of a larger partial settlement pursuant to which Ms. Bady agreed to drop her claim for disability insurance benefits. See Agreed Motion. As the Supreme Court cautioned in Pierce v. Underwood, 487 U.S. 552, 568, 101 L. Ed. 2d 490, 108 S. Ct. 2541 (1988), "the unfavorable terms of a settlement agreement, without inquiry into the reasons for settlement, cannot conclusively establish the weakness of the government's position. To hold otherwise would not only distort the truth but penalize and thereby discourage useful settlements." In this case, although the Secretary "lost" by agreeing to remand the SSI claim, the "settlement" was not wholly unfavorable to the government as the Secretary "won" an agreement from Ms. Bady to drop her claim for DIB. The court is therefore reluctant to view the Secretary's voluntary remand of the SSI claim as strong objective evidence that the government's position was feeble.
In addition, as discussed above, the Secretary in this case did not violate his duty to develop the record adequately. Bady never requested development of the issue of side effects and the ALJ was entitled to presume that Bady had made her best case. The decision to remand voluntarily to obtain additional evidence should therefore not be construed as controlling evidence that the government's former position was unreasonable.
The court adopts the Magistrate Judge's report and recommendation to remand Plaintiff's claim for widower's insurance benefits. The court also adopts the Magistrate Judge's report and recommendation recommending the denial of EAJA attorneys fees.
BRIAN BARNETT DUFF, JUDGE
UNITED STATES DISTRICT COURT
DATE: MAR 10 1992
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