source: Caselaw Access Project

author: LOUIS H. POLLAK, District Judge.

license: Public Domain

text:
    Maria CIARLANTE v. Margaret HECKLER, Secretary of Health and Human Services.
    Civ. A. No. 83-6208.
    United States District Court, E.D. Pennsylvania.
    Sept. 24, 1985.

      Barry F. Penn, Philadelphia, Pa., for plaintiff.
    Joseph M. Masiuk, Asst. U.S. Atty., Philadelphia, Pa., for defendant.
   MEMORANDUM

LOUIS H. POLLAK, District Judge.

This is a motion by plaintiff Maria Garlante for an award of attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A) (1982) (repealed 1984).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.

I.

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 “[t]he neck showed moderate restriction to any conscious motion or manipulation” and the “[rjange 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 (“AU”) 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 AU denied plaintiff’s request for disability and supplemental security income benefits.

In his evaluation of the evidence, the AU 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 show that there was a medical condition that. could be used to produce the symptoms alleged. Id.

In the AU’s view, the evidence could not support a finding that the plaintiff had a severe impairment within the meaning of the Social Security Act. Id. For the AU, the x-ray evidence had suggested a normal cervical spine, and while it had revealed some osteophyte formation of the left ankle, the ambulatory impairment was only mild. Id. According to the AU, the operations the plaintiff had undergone only temporarily disabled the plaintiff. Id. And in his view the plaintiff’s hypertension was under control. Id. Because the reports of Drs. Tomassetti and Antolik concerning the plaintiff’s limitations of function were not accompanied by objective medical data, the AU discounted them. Id. at 14-15. In light of these findings, the AU considered the plaintiffs subjective allegations as not fully credible. Id. at 15. The Appeals Council of the Secretary affirmed the AU’s decision. Id. at 3-4.

In an action brought to review the final decision of the Secretary, Magistrate Hall overturned the ALJ’s decision on the basis that it was not supported by substantial evidence. Magistrate’s Report at 9. In the Magistrate’s view, the ALJ had failed to explain why he disregarded “probative medical evidence supportive of the plaintiff’s s claims.” Id. at 6. In particular, the Magistrate noted that the ALJ had ignored the medical opinions of Drs. Gonzalez, Hicks, and Antolik with respect to disabilities of the plaintiff. Id. at 6-7. This court adopted the Magistrate’s Report and Recommendation and remanded the matter to the Secretary for the calculation and award of benefits to the plaintiff.

II.

It is undisputed by .the parties that the EAJA provides authority for an award of attorney’s fees to the prevailing plaintiff in Social Security cases pending before October 1, 1984, the date of the repeal of the EAJA. Moreover, the parties do not dispute that the plaintiff was a prevailing party in terms of the EAJA, given the determination of the Magistrate and this court that she was entitled to benefits. The dispute here concerns whether the government was “substantially justified” in its position:

(d)(1)(A) 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 position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A) (1982) (repealed 1984).

Both parties have called the court’s attention to the case law that is said to give content to the question posed by the statute — whether “the position of the United States was substantially justified.” In particular, the parties refer to Washington v. Heckler, 756 F.2d 959 (3rd Cir.1985). There the Third Circuit succintly stated the applicable law with respect to attorney’s fees under the EAJA in the context of a social security case. The court pointed out that the position of the Secretary includes not only her litigation position but also the agency position that made the lawsuit necessary. Id. at 961 (citations omitted). Moreover, the court explained that “substantial justification” means a “middle ground between an automatic award of fees to a prevailing party and an award made only when the government’s position was frivolous.” Id. (citing Dougherty v. Lehman, 711 F.2d 555, 563 (3d Cir.1983)). And, according to the Third Circuit, the burden of proving this substantial justification is on the Secretary Id.

To meet its burden, the Secretary must make three showings: 1) that the government had “a reasonable basis in truth for the facts alleged”; 2) that there was “a reasonable basis in law for the theory it propounds”; and 3) that there was “a reasonable connection between the facts alleged and the legal theory advanced.” Id. The court added that because the burden is a strong one, it cannot be met simply by the presentation of “some evidence” in support of the Secretary’s position. Id. (citation omitted).

Washington v. Heckler turned on the second showing that the Secretary had to make — whether there was a reasonable basis in law for her position. The Third Circuit suggested that if the case involved a close question of law, then the Secretary’s position would be deemed reasonable, even if not ultimately accepted by the courts. Id. at 961-62. Yet, according to the court, a position that “clearly offends established precedent” would not be deemed “substantially justified.” Id. In Washington v. Heckler, the court found that the Secretary had ignored established precedent when the AU failed to evaluate the claimant’s exertional and non-exertional impairments together, and had simply applied the Medical-Vocational Guidelines (the “grids”) without relying on supporting evidence that would demonstrate the ability of the claimant to perform available work. Id.

In a companion case to Washington v. Heckler, Dennis v. Heckler, 756 F.2d 971 (3d Cir.1985), the court focused on the first factor — whether there was a reasonable basis in truth for the facts alleged by the Secretary. In reversing the district court’s conclusion that her position was substantially justified, the court emphasized that the Secretary could not simply offer “some” evidence to satisfy its burden on the factual question. Id. at 976. Although the AU in the hearing had heard testimony from a vocational expert that the claimant, a chronic paranoid schizophrenic, could do light work, and although the AU thought from his own observations at the hearing that the claimant could undergo stress, the court concluded that in view of the entire record there was “no medical evidence to support a conclusion that plaintiff was not totally precluded from doing any work.” Id. at 976. Moreover, the court found that the AU substituted his own diagnosis for that of the physicians, which violated clear Third Circuit precedent. Id. With respect to this latter point, the panel seemed to suggest that it could have found alternatively that the Secretary had no reasonable basis in law for her position, but that it was unnecessary to reach this issue given the decision on the facts. Id. at 976 n. 11.

III.

A.

In the brief in support of the motion, plaintiff argues primarily that the Secretary has not satisfied her burden as to her factual position. Plaintiff’s Memorandum at 4. The plaintiff suggests that, given the entire record, the Secretary has not shown that there is a reasonable basis in truth for the facts alleged. Id. In her response, the Secretary has listed in detail medical evidence on the record that would support her position. Defendant’s Response at 3-4. The plaintiff counters in the reply brief that this list simply involves a “recitation of certain bits of evidence” that do not reach the level of carrying the Secretary’s heavy burden on this factual issue. Reply Brief at 1.

The Secretary points out that whereas the Magistrate criticized the AU for not pointing to evidence contradictory to the Physical Capacities Evaluations of Drs. Tomassetti and Antolik, there was evidence from the examinations- given the plaintiff during her hospitalizations that the plaintiff suffered no joint disease, no severe joint pain, and no limitation of motion. Defendant’s Response at 3. Moreover, the Secretary states that in his examination Dr. Hicks found no bony abnormalities, no swollen joints, no deformity of the spine, and a full overall range of motion. Id. at 3. The net impression of Dr. Hicks was, the Secretary notes, that the plaintiff suffered from a degenerative joint disease primarily affecting the ankles and only moderately affecting her walking. Id.

Furthermore, the Secretary argues that, according to the record, plaintiff suffered no complications from her various hospitalizations. Id. The Secretary also reiterates the AU’s determination that plaintiff’s complaints of pain were not credible given the absence of any objective clinical findings to point to an impairment that would cause these symptoms. Id.

It is clear from the above discussion that this case does not present a factual situation exactly similar to that of Dennis because the Secretary does point to medical evidence supporting her conclusion that the plaintiff was not disabled. The question then becomes whether the Secretary has simply offered “some evidence,” as the plaintiff contends, or whether she has met her “strong” burden of offering substantial justification on the factual issue.

The case in which the Third Circuit first discussed what might constitute “some evidence,” Tressler v. Heckler, 748 F.2d 146 (3d Cir.1984), does not provide much guidance. There the Appeals Council, in overturning the decision of the AU that the claimant was disabled, offered no evidence that would contradict the claimant’s treating physician’s determination that the claimant was disabled. Id. at 148. So also the finding in Dougherty v. Lehman, 711 F.2d 555 (3d Cir.1983), that the Secretary of the Navy’s position had a reasonable basis in fact is not helpful because the facts in the case were not in dispute. Id. at 564.

However, given that the Secretary's burden to provide substantial evidence on the factual issue is strong, I conclude that, based on the entire record, the Secretary has not met her burden here. Not only is there testimony by the plaintiff and her daughter-in-law as to the plaintiff’s disability, but there are reports of her two treating physicians. In particular, Dr. Antolik’s report refers to (1) the “swelling” in the plaintiff’s hands that prevents her lifting any object of more than 10 lbs. and (2) her deteriorating condition. Administrative Record at 179. Moreover, the examination of Dr. Gonzalez, while revealing a normal spine curvature, disclosed restriction of motion in the plaintiff’s neck and spine. Id. at 116. Although his ultimate description of her condition was fair, his diagnosis revealed hypertension, arthritis, and the bladder prolapse. Id. at 117. Furthermore, Dr. Hicks in his report found osteophyte formation of the left ankle and an impairment in the plaintiff’s hand function. Id. at 153.

B.

The second question to be addressed is whether there was a reasonable basis in law for the theory the Secretary propounded. The crux of this question, as Washington v. Heckler suggests, is whether the position of the Secretary is against clearly established precedent. 756 F.2d at 962. The plaintiff argues in her reply brief that, given the Magistrate’s findings, the Secretary violated established Third Circuit precedent 1) by ignoring medical evidence supportive of disability, 2) by failing to consider plaintiff’s various severe impairments in combination, 3) by failing to rebut medical evidence of disability with contradictory evidence, and 4) by failing to furnish evidentiary support for credibility findings. Reply Brief at 2.

Plaintiff’s first contention, that the AU ignored medical evidence supportive of the disability and thus that he violated the Third Circuit precedent of Cotter v. Harris, 642 F.2d 700 (3d Cir.), reh’g denied, 650 F.2d 481 (3d Cir.1981), refers to the Magistrate’s observation that the AU did not explain why he rejected findings of Drs. Gonzalez, Hicks, and Antolik, the plaintiff’s primary treating physician, concerning the disability. In Cotter, the AU made no mention of the medical opinions and findings of the claimant’s treating physician and of a specialist who had examined the claimant. The court, reiterating a doctrine established in a long line of cases, pointed out that “an explanation from the AU of the reason why probative evidence has been rejected is required so that a reviewing court can determine whether the reasons for rejection were improper.” Id. at 706.

In the instant case, the AU did not ignore the opinion of Dr. Antolik. He specifically stated that he considered the reports of that physician and of Dr. Tomassetti. Administrative Record at 14. Moreover, he explained his reason for discounting them: they were not accompanied by objective medical data. Id. It may be that the AU should have explained more fully why Dr. Antolik.s discussion of the plaintiff’s deteriorating condition and her hand problems does not count as objective medical data, especially since the treating physician’s opinion is given great weight, see Cotter, 642 F.2d at 704 (citation omitted). Yet the AU did consider the report and give reasons for his rejection of it. Thus he did not violate the Cotter admonition.

However, the AU did not explain why he rejected the findings of Drs. Gonzalez and Hicks. Although he mentioned Dr. Hicks’ finding that the plaintiff’s hand function was somewhat impaired, Administrative Record at 13, the AU never stated in his review of the evidence why he discounted it. Id. at 14. Moreover, he did not explain why he rejected Dr. Gonzalez’s finding that the plaintiff’s motion was restricted. Accordingly, in his failure to confront medical evidence supportive of the disability, the AU violated the clear rule of Cotter.

Next plaintiff contends that the government failed to consider the plaintiff’s various severe impairments in combination and thus violated the clearly established precedent of Giordano v. Schweiker, 551 F.Supp. 997 (E.D.Pa.1982). Although a district court decision cannot properly be characterized as clearly established Third Circuit precedent, Giordano does refer to Bittel v. Richardson, 441 F.2d 1193, 1195 (3d Cir.1971). This latter citation supports the plaintiff’s argument that the precedent in this circuit requires the Secretary to consider the combined effect of the claimant’s several illnesses.

Although the AU considered each of the various ailments of the plaintiff, her arthritis, diverticulitis, and hypertension, the only evidence of his considering them together is the following: “While the claimant undoubtedly suffers some degree of discomfort due to her multiple medical problems, the medical evidence does not support a finding that any of these impairments can be considered to be a severe impairment within the meaning of the Social Security Act.” Administrative Record at 14. As this statement demonstrates, the AU focussed his attention on the individual impairments rather than upon the effect of the several illnesses. Id. With this focus it is understandable that the AU would overlook Dr. Antolik’s remark about the general deteriorating condition of the plaintiff. Id. at 179. Yet such is not permitted by the law of this circuit. Thus, once again the Secretary disregarded clearly established precedent.

Furthermore, plaintiff contends that the Secretary violated the precedent of Rossi v. Califano, 602 F.2d 55 (3d Cir.1979), when she failed to rebut medical evidence of the disability with contradictory evidence. This contention refers to the Magistrate’s observation that the AU offered no contradictory evidence that would justify his rejection of the reports of Drs. Tomassetti and Antolik. Magistrate’s Report at 8. Although there was clinical evidence and testimony from the claimant’s physician that she was disabled, the AU in Rossi based his rejection on no substantial contrary evidence. Id. at 58-59.

It would be difficult, however, to compare the situation of Rossi to that of the instant case. In Rossi, upon an examination of the entire record, the court found only one piece of evidence that might serve as evidence contradicting the plaintiff’s assertion of her disability. Id. at 58. While the AU did not cite contradictory evidence immediately after his dismissal of the reports of Drs. Tomassetti and Antolik, he did refer to such evidence in the preceding paragraph of his report. Administrative Record at 14. And the record itself does provide such evidence, although this evidence has not risen to the level of being substantial. Accordingly, the claim that the government violated the clear precedent of Rossi is groundless.

Finally, plaintiff argues that by failing to furnish evidentiary support for credibility findings the government violated the clear precedent of Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir.1979). This is in reference to the Magistrate’s finding that the AU did not provide support for his dismissal of the plaintiff’s subjective complaint as not being credible. Magistrate’s Report at 8. Dombrowolsky, however, stands mainly for the proposition that testimony of subjective pain by the claimant should be given weight. Id. at 409. Moreover, Dombrowolsky seemed to turn more on the fact that the claimant was unrepresented at the AU hearing and that the AU made an improper use of the vocational expert testifying at the hearing, see id. at 407-410, than on the question of providing evidentiary support for credibility findings.

Again, whereas the AU did not give as much weight as he should have to the plaintiff’s subjective complaints of pain, complaints supported by testimony of the plaintiff’s daughter-in-law, and whereas the AU should have discussed in more detail why he rejected the subjective allegations of the plaintiff, a review of the record discloses that the AU did partially explain his rejection of her testimony. For he referred to his earlier findings, findings based upon evidence on the record, to explain his rejection of the plaintiff’s credibility. Administrative Record at 15. And although these findings are not adequate, they do at least suggest why the AU rejected the testimony of the plaintiff. Therefore, I cannot accept plaintiff’s argument that the government violated the clearly established precedent of Dobrowolsky.

Plaintiff also claims that the Secretary ignored the regulations of the Secretary compelling a finding of disability. Plaintiff’s Memorandum at 4 (citing Magistrate’s Report at 8). It is unclear whether this is an allegation of the Secretary’s failure to follow the established law or to make a correct factual determination, or alternatively her failure to make a reasonable connection between the facts and her legal theory. See Washington, 756 F.2d at 961. I will treat this claim as a challenge to the Secretary’s failure to have a reasonable basis in law for her theory.

Plaintiff argues that the Magistrate faulted the AU for not following the Medical-Vocational Guidelines (the “grids”) that would have compelled a finding of disability in the plaintiff’s case. However, it is unclear that the AU misapplied the grids given his finding that the claimant had no severe impairment and no impairment that would significantly limit her basic work related functions. Administrative Record at 15. For the application of the grids depends upon an evaluation of the “residual functional capacity” of the claimant, and this in turn revolves around a determination of whether the claimant has a severe medically determinable impairment. 20 C.F.R. § 404 subpt. P, app. 2, 200.00(c), (d) (1985). Because the AU never reached the question of the residual functional capacity of the plaintiff, his failure to apply the grids is understandable.

In the context of the entire Report and Recommendation, the Magistrate’s remarks about the grids suggest that the AU should have determined the residual functional capacity of the claimant to be limited to sedentary or light work on account of her severe impairments. Magistrate’s Report at 8 (“assuming she retained the residual functional capacity ...”) With this capacity, and in light of the plaintiff’s, age, limited education, and past unskilled work experience, an application of the grids would have compelled a finding of disabled. However, this failure to apply the grids does not constitute a violation of clearly established precedent in light of the AU’s finding — albeit an erroneous one — that the plaintiff had no severe impairment.

IV.

In light of the above discussion, I find that the Secretary has not carried her strong burden of proving that her position was substantially justified. Although the factual basis for her position was not as barren as was the case in Dennis, it did not have a reasonable basis in truth in light of the entire record. Moreover, although the Secretary did not violate clearly established precedent in all the points of law that the plaintiff cites, she did on several, and that is enough for her to fail to carry her burden of establishing that there exists a reasonable basis in law for her theory. Given this finding, the plaintiffs will be entitled to attorney’s fees under 28 U.S.C. § 2412(d)(1)(A).

Plaintiff’s attorneys have submitted an affidavit in which they list the hours spent litigating this case. The hours total thirty-five and, at an hourly rate of $75.00 per hour, the fees requested are $2,625.00. Defendant does not contest this sum. Since these fees are reasonable in statutory terms, see 28 U.S.C. § 2412(d)(2)(A), they will be awarded pursuant to an attached order.


author: WILLIAM C. CONNER, District Judge:

text:
    Angel RIVERA, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    No. 84 Civ. 8666 (WCC).
    United States District Court, S.D. New York.
    Sept. 24, 1985.

      Davison F. Moore, Poughkeepsie, N.Y., for plaintiff.
    Rudolph W. Giuliani, U.S. Atty. for S.D. N.Y., New York City, for defendant; Rosemarie E. Matera, Sp. Asst. U.S. Atty., New York City, of counsel.
   OPINION AND ORDER

WILLIAM C. CONNER, District Judge:

Plaintiff Angel Rivera (“Rivera”) brought this action pursuant to §§ 205(g) and 1631(c)(3) of the Social Security Act (“the Act”), as amended, 42 U.S.C. §§ 405(g), 1383(c) (1982), seeking review of a final determination of the Secretary of Health and Human Services (“the Secretary”) that he is not “disabled” within the meaning of the Act, and therefore is not entitled to disability insurance benefits. This matter is now before the Court on the parties’ cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. I have reviewed the testimony and exhibits received by the Secretary, and I have concluded, for the reasons stated below, that the Secretary failed to apply proper legal standards and made findings that are not supported by substantial evidence. Accordingly, Rivera’s motion is granted, the Secretary’s determination that Rivera is not disabled is reversed, and this matter is remanded to the Social Security Administration (“SSA”) for a computation of benefits.

Background

Rivera is a 41-year-old man with an eighth-grade education (Tr. at 29). After completing military service, he held a variety of jobs, working as a carpenter for seven years, as trucker’s helper for five years, and finally, as a heavy equipment operator for the New York State Department of Transportation (Tr. at 31-33). On December 21, 1981, Rivera sustained an injury to his lower back in an on-the-job accident and thereafter suffered lower back problems that prevented him from working steadily (Tr. at 33-34). On July 7, 1983, Rivera’s back “gave in” while he was working and, after that incident, he stopped working altogether (Tr. at 34). His condition has been diagnosed as a herniated disc (Tr. at 84, 117), which causes pain and numbness in the lower back and in both legs (Tr. at 37-38).

On October 4, 1983, Rivera filed an application for disability benefits with the SSA, citing his herniated disc as the cause of his disability (Tr. at 65). The SSA denied his application, both initially (Tr. at 71-74), and on reconsideration (Tr. at 81). Rivera requested a de novo hearing of his application (Tr. at 109), and on April 18,1984, such a hearing was held before Administrative Law Judge Arthur Newbauer (“the AU”).

Rivera was the only person who testified at the hearing. He stated that lower back problems prevented him from working, explaining that he suffered from constant pain in his back, which he said extended to his legs when he walked “a lot” (Tr. at 34, 37-38). He stated that his lower back pain worsened when he sat continuously or when he stood for more than twenty minutes at a time (Tr. at 39-40). He testified that in order to prevent this increase in pain, he constantly had to shift his position, alternating between sitting, standing, walking, and lying down (Tr. at 40-41). When asked if there was anything he could do to lessen the pain, he replied that there was not, other than wearing a back brace (Tr. at 38).

Rivera testified that his daily activities included painting ceramics, watching television, and listening to the radio. He stated that he had difficulty getting dressed and that he was unable to do minor household chores such as carrying groceries, gardening, or other tasks that require bending (Tr. at 86, 107, 103).

In addition to Rivera’s testimony, the AU received into evidence a number of medical reports from Dr. Michael H. Kamalian, Rivera’s treating physician, Dr. G. Michael Croker, Rivera’s chiropractor, and two unidentified consulting physicians retained by the SSA. In reports dated October 26, 1983, and November 10, 1983, Dr. Kamalian diagnosed Rivera’s condition as a herniated disc in his lower back. In his report of October 26, 1983, he described Rivera as “totally disabled” (Tr. at 110), and in his report of November 10, 1983, he opined that Rivera had a “chronic low back disorder” and a “permanent partial disability” (Tr. at 118). Dr. Kamalian issued an updated report on February 13, 1984, in which he stated that Rivera had acute para-spinal muscle spasm with radiculopathy (Tr. at 120). He concluded that Rivera was “still disabled at [that] time” (Id.).

In response to a request from the SSA, Dr. Kamalian assessed Rivera’s residual functional capacity in a report dated April 16, 1984. He indicated that Rivera could occasionally lift up to five pounds, could do no substantial carrying at all, could sit no more than four hours in the course of an eight-hour day, could not stand for even one hour in the course of an eight-hour day, and could not walk more than two hours in the course of an eight-hour day (Tr. at 129). Dr. Kamalian stated that Rivera could reach frequently and bend or squat occasionally, but could not crawl or climb (Id.). In a report issued one week later, April 23, 1984, Dr. Kamalian reiterated that Rivera’s working capabilities were limited, but suggested that Rivera “could ... be rehabilitated to do a sedentary type of job” (Tr. at 131).

Dr. G. Michael Croker, a chiropractor who treated the claimant once or twice a month from January 1982 to January 1984 (Tr. at 36, 111), provided additional analytical reports. Dr. Croker diagnosed Rivera’s condition as severe lumbosacral myofuscitis accompanied with L-5 disc syndrome and compression of the lumbosacral plexus (Tr. at 111). He indicated that Rivera’s symptoms included severe pain in the lower spine with bilateral radiation to the legs, acroparathesia, a guarded and antalgic gait, and increased pain when Rivera moved or coughed (Id.). He stated that prolonged standing and sitting aggravated Rivera’s pain, and he advised against “any and all lifting” (Id.).

Two consulting physicians retained by the SSA provided the remainder of the medical reports. Neither of them examined Rivera, but instead based their conclusions on a review of his medical file. Both doctors reiterated the essential findings of Dr. Kamalian, likewise diagnosing Rivera’s condition as a herniated disc (Tr. at 122, 124). However, the consultants disagreed with Dr. Kamalian’s evaluation of Rivera’s residual functional capacity. One of the consultants found Rivera capable of frequently lifting or carrying objects weighing 25 pounds, and occasionally lifting or carrying objects of up to 50 pounds (Tr. at 121). He also found Rivera capable of walking or standing six hours in an eight-hour day, and sitting six hours in an eight-hour day (Id.). Finally, he stated that Rivera could frequently climb, balance, stoop, kneel, crouch, and crawl (Id.). He concluded that Rivera retained the ability to perform a range of medium level work activities (Tr. at 122). The second consulting physician was in agreement with the first consultant’s estimate of Rivera’s ability to lift, carry, sit, and stand or walk, but found that Rivera could climb, balance, stoop, kneel, crouch, and crawl only occasionally (Tr. at 123).

The ALJ issued a decision on July 23, 1984. He found that Rivera’s impairment prevented him from returning to his previous employment, but concluded that Rivera did not suffer from a physical impairment so severe as to prevent him from performing at least sedentary work (Tr. at 9). In support of his finding, the ALJ stated that Dr. Kamalian, Rivera’s treating physician, had indicated that Rivera had the capacity to perform sedentary work (Id.), and he noted that the two consulting physicians had found that Rivera had the residual functional capacity to perform medium level work (Id.). The ALT also stated that in view of the “medical evidence” and his observation of Rivera’s demeanor at the hearing, he found Rivera’s testimony regarding his restricted ability to sit or stand to be “exaggerated” (Id.,). For these reasons, he determined that Rivera was not disabled within the meaning of the Social Security Act.

On November 6, 1984, the Appeals Council denied Rivera’s request that it review the ALJ’s decision, thereby making that decision the final determination of the Secretary. This appeal followed.

Applicable Legal Standards and Scope of Review

A claimant is considered disabled and entitled to disability benefits under the Social Security Act if he is unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A) (1982). The mere presence of an impairment is not disabling within the meaning of the Act. Rather, the Secretary will find a claimant disabled only if the claimant’s

physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

Id. § 423(d)(2)(A) (Supp. I 1983).

The applicable regulations promulgated by the Secretary set forth a five-step sequence to be utilized in evaluating disability claims. 20 C.F.R. §§ 404.1520, 416.920 (1985). The Court of Appeals for the Second Circuit summarized this procedure in Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (per curiam), as follows:

First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform.

The claimant bears the burden of proof as to the first four of these steps. If he meets the burden of proving that he cannot return to his past work, the Secretary assumes the burden of proving the last step — that there is other work that the claimant can perform. Id. If the claimant can perform other work, he is considered not disabled.

In reaching a conclusion on these issues, the trier of fact should consider (1) objective medical facts, diagnoses, or medical opinions, (2) subjective testimony by the claimant as to pain or disability, and (3) background data such as the claimant’s age, education, and previous work experience. Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980); Bastien v. Califano, 572 F.2d 908, 912 (2d Cir.1978). Under § 205(g) of the Act, the Secretary’s factual findings are conclusive if supported by substantial evidence, which has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938).

The substantial evidence test applies not only to findings of basic evidentiary facts, but also to inferences and conclusions drawn from such facts. Beane v. Richardson, 457 F.2d 758, 759 (9th Cir.), cert. denied, 409 U.S. 859, 93 S.Ct. 144, 34 L.Ed.2d 105 (1972); Rodriguez v. Califano, 431 F.Supp. 421, 423 (S.D.N.Y.1977). It is the function of the Secretary, and not the reviewing court, to pass on the credibility of witnesses and to resolve material conflicts in the testimony. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). In short, this Court is not to decide the case de novo. Obviously, however, the Court is not required to accept the Secretary’s determination if the Secretary failed to apply proper legal principles or failed appropriately to consider evidence critical to a just determination of the claimant’s application. Parker, 626 F.2d at 231.

Discussion

I have reviewed the record in light of the standards set forth above, and I conclude that the Secretary’s determination that Rivera is not disabled must be reversed because she failed to apply proper legal principles and made findings that are not supported by substantial evidence. But before discussing that issue, I note that the AU did conform his analysis to the five-step procedure set out in Berry. The AU correctly found (1) that Rivera was not currently engaged in substantial gainful activity; (2) that his impairment was severe; (3) that his impairment was not among those listed in Appendix 1 of the regulations; and (4) that Rivera could not perform his former work as a heavy equipment operator. Once the AU determined that Rivera was unable to return to his former work, the burden shifted to the Secretary to prove that Rivera could perform some other work that exists in the national economy. Berry, 675 F.2d at 467. In this case, the AU found that Rivera was not disabled because he could perform sedentary work. It is that determination which is under review here, and which I find is in error under the standards set out above.

The principal source of the AU’s error was his gross mischaracterization of Dr. Kamalian’s findings with respect to Rivera’s residual functional capacity. In support of his conclusion that Rivera was capable of performing sedentary work, the AU stated that “[t]he orthopedic surgeon,” referring to Dr. Kamalian, “advises that the claimant has the capacity to do sedentary work” (Tr. at 9). The AU was apparently referring to Dr. Kamalian’s report of April 23, 1984 in which he stated that Rivera’s “working capabilities are limited,” but that “[h]e could ... be rehabilitated to do a sedentary type of job” (Tr. at 131). However, read in context, it is clear that Dr. Kamalian was indicating that at the time of his report, Rivera was unable to perform sedentary work, but at some future time, he should be able to do so. He did not state that Rivera was currently capable of performing sedentary work.

Indeed, in a report dated April 16, 1984, just one week earlier, Dr. Kamalian expressed clearly his opinion that Rivera did not have the functional capacity to do sedentary work. He indicated that Rivera could not stand for even one hour in an eight-hour day, that he could not walk more than two hours in an eight-hour day, and that he could not sit for more than four hours in an eight-hour day (Tr. at 129). Since a claimant must be able to do at least some occasional standing and walking and must be able to sit for at least six hours in an eight-hour day in order to be considered capable of performing sedentary work, see Ferraris v. Heckler, 728 F.2d 582, 587 & n. 3 (2d Cir.1984); Mazzella v. Secretary of U.S. Dep’t of Health & Human Servs., 588 F.Supp. 603, 607 (S.D.N.Y.1984); Keppler v. Heckler, 587 F.Supp. 1319, 1322 (S.D.N.Y.1984), it is difficult to understand how the AU could have interpreted Dr. Kamalian’s findings as an indication that Rivera could perform sedentary work. Instead, Dr. Kamalian’s reports are clear evidence that Rivera is unable to engage in any substantial gainful activity. Moreover, as the findings of a treating physician, Dr. Kamalian’s conclusions are binding on the Secretary absent substantial evidence to the contrary. Bastien v. Califano, 572 F.2d at 912; Gold v. Secretary of Health, Educ. & Welfare, 463 F.2d 38, 42 (2d Cir.1972).

No substantial evidence exists in the record that could justify disregarding Dr. Kamalian’s findings. The AU noted that the two consulting physicians had found that Rivera could sit and stand for six hours in an eight-hour day, and that in their view, he was capable of performing medium level work (Tr. at 8). However,

[t]he law is clear that the opinion of a physician who has never treated or examined the claimant is entitled to little weight, and generally cannot serve as substantial evidence supporting a finding of nondisability when the record contains detailed contradictory opinions by physicians who have examined the claimant.

Ceglia v. Schweiker, 566 F.Supp. 118, 124 (E.D.N.Y.1983); see also Allen v. Weinberger, 552 F.2d 781 (7th Cir.1977); Landess v. Weinberger, 490 F.2d 1187 (8th Cir.1974); Browne v. Richardson, 468 F.2d 1003 (1st Cir.1972); Gudlis v. Califano, 452 F.Supp. 401 (N.D.Ill.1978); Tingling v. Secretary of Health & Human Servs., 575 F.Supp. 905, 909 (S.D.N.Y.1983).

The AU also noted that he found Rivera’s testimony that he was unable to sit or stand for prolonged periods “to be exaggerated” (Tr. at 9). However, while the AU purported to base this conclusion on the “medical evidence” and his own observation of Rivera’s demeanor at the hearing, Rivera’s complaints were entirely consistent with Dr. Kamalian’s medical findings with respect to Rivera’s residual functional capacity. Accordingly, the AU’s assessment of Rivera’s demeanor is entitled to little weight, see Carroll v. Secretary of Health & Human Sews., 705 F.2d 638, 643 (2d Cir.1983), and does not amount to substantial evidence on which he could disregard Dr. Kamalian’s expert opinion that Rivera was unable to perform sedentary work.

Therefore, for all of these reasons, I conclude that the Secretary failed to apply the proper legal principles in reviewing Rivera’s application, and that her determination that Rivera is capable of performing sedentary work is not supported by substantial evidence. Since the reports submitted by Rivera’s treating physician clearly indicate that Rivera is disabled within the meaning of the Social Security Act, I hereby reverse the Secretary’s determination, direct the Clerk of the Court to enter judgment in favor of plaintiff, and remand this matter to the SSA for the computation of benefits.

SO ORDERED.

      . All citations to the transcript refer to the pages as numbered for the complete record on appeal.

      . Although the Secretary correctly notes that a chiropractor is not an acceptable medical source, see 20 C.F.R. § 404.1513 (1985), the regulations do make clear that a chiropractor’s reports may be considered in determining whether a claimant is disabled. See id. § 404.-1516.


author: JOYCE HENS GREEN, District Judge.

text:
    NEWPORT GALLERIA GROUP, An Affiliate of the Pyramid Companies, Plaintiff, v. Michael R. DELAND, et al., Defendants, Massachusetts Audubon Society, et al., Defendants-Intervenors.
    Civ. A. No. 85-2747.
    United States District Court, District of Columbia.
    Sept. 25, 1985.

      R. Robert Popeo, Michael S. Gardner, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., Boston, Mass., R. Sarah Compton, Carolyn Kay Weeder, McDermott, Will & Emery, Washington, D.C., for plaintiff.
    Lawrence R. Liebesman, U.S. Dept, of Justice, Land & Natural Resources Div., Environmental Defense Section, Washington, D.C., for defendants.
    Michael J. Bean, Environmental Defense Fund, Inc., Washington, D.C., James T.B. Tripp, Environmental Defense Fund, New York City, Peter Shelley, Armond M. Cohen, Conservation Law Foundation of New England, Inc., Boston, Mass., Hope M. Babcock, National Audubon Soe., Jerry Jackson, National Wildlife Foundation, Washington, D.C., for defendants-intervenors.
   MEMORANDUM OPINION AND ORDER

JOYCE HENS GREEN, District Judge.

Plaintiff Newport Galleria Group of the Pyramid Companies (“Pyramid”) seeks to enjoin defendant United States Environmental Protection Agency (“EPA”) from conducting public hearings pursuant to section 404(c) of the Clean Water Act, 33 U.S.C. § 1344(c) (1982), on Pyramid’s proposed construction of a regional shopping mall on certain wetlands located in Attleboro, Massachusetts. EPA and defendantintervenors challenge Pyramid’s right to a preliminary injunction, and move for dismissal of the suit for lack of jurisdiction. Because the Court finds that EPA’s initiation of the section 404(c) proceedings is neither unlawful nor a final agency action, it is constrained to dismiss for lack of subject matter jurisdiction.

I. Background

Pyramid seeks to build an enclosed regional shopping mall on 80 acres of land situated in Attleboro, Massachusetts, approximately 50 acres of which are red maple wetlands known locally as Sweeden’s Swamp. Pyramid is not the first to propose such a mall for Sweeden’s Swamp. The Edward J. DeBartolo Corporation, Pyramid’s immediate predecessor in interest in the land, had earlier sought and failed to obtain permission from the Massachusetts Department of Environmental Quality Engineering (“DEQE”) to locate a shopping center at the site. In 1982, following the DEQE denial, DeBartolo sought an adjudicatory hearing, which was still pending in late 1983 when Pyramid assumed control of the project. The DEQE subsequently authorized the project in a final order issued in March, 1985.

Prior to obtaining state approval, Pyramid also applied to the United States Army Corps of Engineers (“Corps”) in August, 1984, for a permit to fill in Sweeden’s Swamp. Section 404(a) of the Clean Water Act authorizes the Corps to issue permits for the discharge of dredged or fill material into navigable waters at specified disposal sites. 33 U.S.C. § 1344(a) (1982). Section 404(b) provides that, subject to subsection (c), permits are to be based on the application of guidelines developed by the Administrator of the EPA in conjunction with the Secretary of the Army. Id. at § 1344(b) (1982). Those guidelines are set out at 40 C.F.R. § 230 (1984) (“Guidelines”). During the permit process, the EPA, the Corps and the United States Fish and Wildlife Service (“FWS”) examined Sweeden’s Swamp and found it to be a relatively undisturbed exr ample of a deciduous forested New England wetland, providing a habitat for small mammals, song-birds, reptiles, amphibians, and several species of birds during the migratory period. The three agencies concluded that, even with on-site mitigation, Pyramid’s project would result in significant habitat losses. In addition, the EPA notified Pyramid that, under the 404(b) Guidelines, Pyramid bore the burden of demonstrating that no other less environmentally damaging sites were available for its project. Concerns over the loss of habitation, and dissatisfaction with Pyramid’s conclusion that no other practicable alternatives existed, eventually led both the EPA and the FWS to recommend denial of the permit in their official comments to the Corps. Similar concerns prompted the Corps to notify Pyramid in early 1985 that denial of the 404 permit was “imminent”. Declaration of Douglas A. Thompson, Exhibit K.

On May 2, 1985, Colonel Carl B. Sciple, Division Engineer of the Corps’ New England Regional Division, forwarded his recommendation on Pyramid’s permit application to Major General John F. Wall, then Director of Civil Works at Corps Headquarters in Washington, D.C. General Wall had earlier directed Colonel Sciple to submit his recommendation for review. Colonel Sciple proposed that Pyramid’s permit be denied. General Wall, however, overturned that decision, and on May 31, 1985, directed Colonel Sciple to prepare a notice of intent to issue the permit and to reconcile his findings to conform with the instructions from Washington. On June 28, Colonel Sciple issued the notice of intent and the reconciled documentation. The notice set forth a series of conditions Pyramid must meet before it can begin alteration of Sweeden’s Swamp. Chief among these is the creation of an off-site mitigation project, or artificial swamp, to replace the wetlands lost to the shopping center. The notice requires that Pyramid locate a mitigation site, complete hydrological studies and habitation evaluation, and develop plans and specifications for the project. No significant construction of the mall is to commence until the man-made swamp is functioning to the satisfaction of the Corps’ Division Engineer. The proposed permit does not specify the size of the new swamp or its location, and it allows removal of substrate from Sweeden’s Swamp in order to develop the artificial wetlands.

On July 23,1985, EPA’s Regional Administrator (“RA”) Michael R. Deland informed the Corps and Pryamid that he was initiating proceedings under section 404(c), and thereby suspending issuance of the permit. It is this action that Pyramid challenges as illegal and seeks to enjoin.

II. Discussion

Section 404(c) provides, in pertinent part, that the EPA Administrator

is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site ... whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas ..., wildlife, or recreational areas.

33 U.S.C. § 1344(c) (1982). Regulations issued under section 404(c) set forth the rather broad standards the Administrator is to apply in determining when to exercise this statutory veto power. They state that where “the Regional Administrator has reason to believe after evaluating the information available to him ... that an ‘unacceptable adverse effect’ could result ... he may initiate [§ 404(c) proceedings].” 40 C.F.R. § 231.3(a) (1984) (emphasis supplied). In essence, Pyramid contends that, as a matter of law, the RA cannot have any reason to believe that any adverse effect could possibly result from its project; that as a result, the RA’s initiation of the section 404(c) proceedings is unlawful; and that therefore, the initiation of these proceedings is final agency action that this Court may review and enjoin.

Before turning to the specifics of Pyramid’s arguments, it is worth noting the structure and plain language of section 404. As Pyramid correctly argues, under section 404(b), primary responsibility for the issuance of permits rests, in the first instance, with the Corps. Section 404(b), however, is expressly made subject to the EPA Administrator’s veto power set out in section 404(c). Pyramid characterizes this power as “extraordinary, and therefore highly restricted,” and claims that as such it may be exercised “only if the Regional Administrator has reason to believe” that unacceptable adverse effects could result from the proposed project. Plaintiff’s Motion for Preliminary Injunction (“Plaintiff’s Motion”) at 21 (emphasis supplied). Pyramid’s narrow view of the RA’s authority under section 404(c), however, finds no support in the statute. That section authorizes the RA to withdraw a permit “whenever he determines, after notice and opportunity for public hearings, that [the project] will have an unacceptable adverse effect” on any of the five designated resource areas. 33 U.S.C. § 1344(c) (1982). Nothing in section 404(c) suggests that this power is extraordinary or highly restricted. Quite the contrary, the statute sets out no threshold requirements for the initiation of section 404(c) proceedings whatsoever: the sole specific limitation — the finding of an “unacceptable adverse effect” — applies only to actions the RA may take after the notice and hearing process, not before. The conditions placed on the RA’s initiation of section 404(c) proceedings, such as they are, appear only in the regulations quoted above. As noted previously, they are broad, requiring only that the RA “[have] reason to believe ... that an ‘unacceptable adverse effect’ could result” from a given project. 40 C.F.R. § 231.3(a) (1984) (emphasis supplied).

Unable to point to any statutory language or legislative history in support of its claim that the RA’s section 404(c) powers are highly restricted, Pyramid relies on the fact that the EPA has commenced proceedings under this section “on only seven or eight occasions” since passage of the Act. Plaintiff’s Motion at 21. This fact hardly compels the conclusion, as Pyramid seems to suggest, that the EPA understands its powers to be severely restricted; the infrequent use of section 404(c) may simply be the result of a regulatory like-mindedness between the EPA and the Corps. The Court need not speculate, however, as it is enough to conclude that the relatively infrequent use of section 404(c) powers, without more, does not convert a broadly defined authority into an extraordinary and highly limited one.

In short then, Congress gave the EPA wide discretion to determine when to initiate proceedings under section 404(c). It is against this backdrop that Pyramid’s claim of an illegal initiation of section 404(c) proceedings must be judged.

A. Practicable Alternative Issue

Pyramid argues that no other practicable alternative sites are available to it as a matter of law, and thus the RA cannot possibly have any reason to believe otherwise. It rests its argument on the 404(b) Guidelines, which state

[i]f it is otherwise a practicable alternative, an area not presently owned by the applicant which could reasonably be obtained, utilized, expanded or managed in order to fulfill the basic purpose of the proposed activity may be considered.

40 C.F.R. § 230.10(a)(2) (1984). Pyramid argues, plausibly, that under the Guidelines, property owned by another may not be considered “available” for purposes of determining practicable alternatives. The only site identified by the RA as a possible alternative in this case is already owned by a competing developer, thus, Pyramid claims, there are no practicable alternatives available to it as a matter of law.

The difficulty with Pyramid’s argument, and indeed, the underlying flaw in Pyramid’s decision to bring suit at this juncture, is that this Court simply cannot decide those questions that Pyramid characterizes as “purely legal” on the present record. The RA has held no hearings nor has he compiled any administrative record on the practicable alternatives issue; rather, he has simply decided to investigate the question. Yet Pyramid would have the Court rule that based on the Corps’ ultimate finding that no alternatives are available, the RA is precluded, as a matter of law, from entertaining doubts about the Corps’ conclusion. This the Court is not prepared to do. In promulgating the section 404(c) Guidelines, the EPA noted that the RA’s “preliminary determination [to initiate proceedings] merely represents a judgment that the matter is worth looking into.” 44 Fed.Reg. at 58,078 (1979). The Corps’ conclusion that no alternatives are available to Pyramid is hardly a sufficient basis for ruling, as a matter of law, that the RA could not possibly believe the issue is worth investigating. Section 404(c) would be a curious veto power, indeed, if, as Pyramid suggests, courts could prevent the EPA from reviewing those very findings upon which the Corps based its decision to issue the permit. See note 2, supra.

It is true that the section 404(c) Guidelines require that the RA base his “reason to believe” determination on “the information available to him.” 40 C.F.R. § 231.3(a) (1984). This does not limit the RA, however, to only that information presented by the Corps. Moreover, in the present ease the RA had before him Colonel Sciple’s original recommendation of denial, which included the “ ‘No Build’ alternative”. Draft Statement of Findings and Environmental Assessment at 5. While Pyramid may not view this as a particularly attractive alternative, there is nothing to suggest that the RA may not consider it when deciding to initiate section 404(c) proceedings. In fact, in promulgating the 404(c) regulations, the EPA stated that “[o]f course, even where there is no alternative available, and ‘vetoing’ the site means stopping a project entirely, the loss of the 404(c) resources may still be so great as to be ‘unacceptable.’ ” 44 Fed.Reg. at 58,078 (1979). Thus it appears that, whether or not Pyramid could obtain another site for its mall, the RA was entitled to conduct proceedings under section 404(c) to determine whether the project should be barred altogether. Finally, at oral argument, government counsel argued that the EPA and the Corps have taken different views with respect to the meaning of “availability” for section 404(c) purposes, and that this policy dispute should be decided after hearings and public debate, not on an incomplete record.

For all these reasons, the Court is simply unable to rule, as a matter of law, that the RA could not possibly have had reason to believe that no other practicable alternatives exist. The statute and regulations grant the RA broad discretion in determining when to initiate section 404(c) proceedings, and on the present record the Court is unable to find that he abused that discretion.

B. The Unacceptable Adverse Effect Issue

Similarly, Pyramid contends that the RA cannot possibly have reason to believe that any unacceptable adverse effects could result from its project, since the Corps found that as a result of the artificial swamp, the project will produce a “net benefit to the aquatic environment.” Statement of Findings and Environmental Assessments (“Corps’ Findings”) at 25. Pyramid has agreed not to touch Sweeden’s Swamp until a “blue ribbon panel” certifies that the artificial swamp is functioning satisfactorily. Thus, it contends, no harm could possibly flow from issuance of the permit, since Sweeden’s Swamp will remain unaltered until the mitigation project is successfully completed.

While Pyramid's arguments have a certain logical appeal, they are premised once again on a tortured construction of the statute. In essence, Pyramid claims that the EPA is bound by the Corps’ findings when exercising its section 404(c) veto power. As discussed above, this is not the case. Presumably, the Corps only issues permits when it believes that it is environmentally safe to do so; if the section 404(c) veto is to have any meaning at all, the EPA must be able to disagree with the Corps’ conclusions. Certainly it is entitled to initiate proceedings under section 404(c) if it believes a matter is worth “looking into.” It would be a rare case where a court could confidently say that the RA could not possibly believe that the findings of the Corps were open to question and therefore that further investigation was improper.

Here, the RA had ample reason to initiate section 404(c) proceedings. While Pyramid trumpets the Corps’ ultimate findings of a net benefit, it conveniently overlooks the fact that Colonel Sciple, the person who conducted the actual investigation of Pyramid’s permit application, recommended that the permit be denied, and submitted detailed findings to support that recommendation. In addition, the EPA and FWS urged denial of the permit in their official comments to the Corps. Clearly then, there is disagreement among the respective agencies as to the environmental effects of the proposed mall. Pyramid’s contention that, as a matter of law, the RA could not possibly believe that the project could result in any unacceptable adverse effects is simply untenable.

Similarly, the fact that Pyramid has agreed not to touch Sweeden’s Swamp until a blue ribbon panel certifies that its man-made swamp is fully operative does not preclude the RA from initiating section 404(c) proceedings. The panel itself has not been chosen and, more importantly, the criteria it will use in determining whether the artificial swamp is “functioning satisfactorily” have not been articulated. Under these circumstances, the Court cannot rule, as a matter of law, that the RA cannot possibly believe that unacceptable adverse effects could result from such an ill-defined mitigation project. To do so would in effect allow a permit applicant to divest the EPA of its section 404(c) veto power and turn it over to a private panel of the applicant’s own choosing. The Court declines to re-write the statute in such a fashion.

Finally, Pyramid argues that the RA cannot possibly entertain doubts about the value of artificial wetlands, and therefore cannot initiate section 404(c) proceedings to investigate the subject. Plaintiff supports this contention with an affidavit submitted by several artificial wetlands experts who state that artificial swamps have been successfully created for decades and thus “[tjhere is simply no question about the ability of Pyramid to construct the wetlands.” Plaintiff’s Motion at 51. It would be a truly extraordinary step for this Court to hold, on the basis of a single affidavit submitted by a permit applicant, that the EPA is barred from even investigating a question of such environmental import. It may well be that artificial swamps are as environmentally beneficial as those that have evolved over the course of centuries. This Court is not prepared, however, to decide such a question as a matter of law. To the extent the judiciary is qualified to pass judgment on such an issue, it is only at the conclusion of full administrative proceedings undertaken by the agency to which Congress has entrusted the protection of the nation’s environment.

In sum, then, the Court finds that the RA did not abuse his discretionary authority by initiating section 404(c) proceedings in this case. The statute, and the regulations promulgated under it, give the RA wide latitude in determining when to commence such proceedings, requiring, in essence, a good faith belief that issuance of a permit might result in unacceptable harm to the environment. Pyramid has failed to demonstrate, as it must, that the RA in this case could not possibly have such a good faith belief.

C. Final Agency Action

Pyramid maintains that the RA’s initiation of the section 404(c) proceedings is final, and therefore reviewable, agency action precisely because it is illegal. The question of whether the RA’s decision is final agency action, Pyramid argues, “is inextricable from the underlying claim that the agency lacked authority under the statute and regulations to initiate the proceeding.” Plaintiff’s Memorandum in Opposition to Defendants’ Motion to Dismiss (“Plaintiff’s Opposition”) at 5. Having concluded that the RA’s commencement of section 404(c) proceedings was legal and proper, it follows that the action is neither final nor reviewable. Indeed, the EPA has simply initiated an investigation; it has made no final determinations, but, rather, has begun the process that will lead to such decisions. Judicial review at this stage of the proceedings is therefore improper.

The Supreme Court has adopted a pragmatic approach to determining whether agency action is “final” and therefore subject to judicial review. Federal Trade Commission v. Standard Oil Co. of California, 449 U.S. 232, 239, 101 S.Ct. 488, 493, 66 L.Ed.2d 416 (1980) (“SoCal”); Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). The Court looks to see whether the action is “definitive”; whether it has a direct and immediate effect on the parties; and finally, whether judicial review will serve efficiency or enforcement of the regulatory scheme. SoCal, 449 U.S. at 240-43, 101 S.Ct. at 493-95. An examination of these factors in the present case makes obvious that the EPA’s initiation of section 404(c) proceedings simply is not final agency action.

In SoCal, as here, the agency began an investigation by issuing a complaint stating that it had “reason to believe” that the relevant statute was being violated. Id. at 241, 101 S.Ct. at 493. The Supreme Court noted that such action does not constitute a definitive statement of the agency’s position, but merely “represents a threshold determination that further inquiry is warranted” and that proceedings should be initiated. Id. So too here, the RA’s initiation of section 404(c) proceedings “merely represents a judgment thát the matter is worth looking into.” 44 Fed.Reg. 58,078 (1979). Pyramid argues that commencement of section 404(c) hearings has a direct and significant effect on it, since construction of the shopping center will be delayed as a result. But here, as in SoCal, the RA’s action means “only that adjudicatory proceedings will commence.” Id. at 241-42, 101 S.Ct. at 494. Pyramid’s rights have not been fixed and its permit has not been denied. If the delays occasioned by administrative hearings were a sufficiently direct and immediate effect to warrant judicial review, then virtually all administrative investigations would constitute final agency action. Such delays standing alone clearly do not convert investigatory proceedings into final agency actions.

Finally, judicial review at this juncture would thwart rather than serve the interests of efficiency and enforcement of the statute. This Court is simply not the forum in which to decide, in the first instance, questions concerning practicable alternatives and the value of artificial wetlands. Congress has entrusted the resolution of such issues to the expertise of the EPA, and has directed that agency to base its decisions on a full record developed through public hearings. It would be contrary to the congressional scheme to preempt agency consideration and attempt to decide such questions as purely legal matters. See Public Citizen Health Research Group v. Commissioner, Food and Drug Admin., 740 F.2d 21, 30 (D.C.Cir.1984) (“judicial resolution of substantive issues that are the subject of an ongoing agency proceeding” impermissible); Association of National Advertisers, Inc. v. Federal Trade Comm’n, 627 F.2d 1151, 1180 (D.C.Cir.1979) (Leventhal, J., concurring) (finality doctrine permits judicial intervention in ongoing agency proceeding only in cases of clear violation of statutory standards), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1113 (1980).

Accordingly, for the reasons set forth above, the Court concludes that it lacks jurisdiction over this matter and therefore dismisses the action.

SO ORDERED.

      . The Guidelines provide that where a proposed project "does not require access or proximity to or siting within the special aquatic site in question to fulfill its basic purpose (i.e., is not ‘water dependent’), practicable alternatives that do not involve special aquatic sites are presumed to be available, unless clearly demonstrated otherwise." 40 C.F.R. § 230.10(a)(3) (1984).

      . Pyramid goes so far as to suggest that the EPA may not revisit the issue of practicable alternatives after the Corps has reached its decision. Plaintiffs Motion at 22. Once again. Pyramid points to nothing in the statute, regulations or legislative history to justify such a restriction. Indeed, it would be extraordinary if Congress granted the EPA a veto power over the Corps’ permit decisions, but precluded it from reconsidering those issues the Corps considered in deciding to grant the permit in the first place.

      . Pyramid suggests that the panel will be "chaired by former EPA Administrator William Ruckelshaus, or someone of his same stature and experience.” Plaintiff’s Motion at 51.