Judge Thomas McAvoy
Padula sought supplemental security income benefits, claiming disability since 2006 due to depression, substance abuse and acid reflux. An administrative law judge (ALJ) found residual functional capacity to perform landscaping work. Padula’s 2011 complaint alleged the ALJ’s improper application of the treating physician rule and error in finding him not credible. In 2012 the court adopted a magistrate judge’s recommendation that the commissioner’s final decision denying benefits be affirmed. Second Circuit partly vacated, concluding that although the ALJ did not err in finding that Padula’s impairment did not satisfy the Appendix 1 listing for §12.04 or the impairment listings for §12.04 B or C, the ALJ erred at the fourth step of his analysis. District court denied Padula attorney fees under the Equal Access to Justice Act, finding the commissioner’s position substantially justified. Although the ALJ erred in rejecting as incredible Padula’s reported symptoms of nausea and fatigue, the record showed that Padula complained of nausea to Dr. Astill-Vaccaro only once, that Astill-Vaccaro did not attribute this nausea to Padula’s medication, and that Padula’s primary care physician noted that Padula reported no side effects from his medications.