Again, whereas the ALJ 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 ALJ should have discussed in more detail why he rejected the subjective allegations of the plaintiff, a review of the record discloses that the ALJ 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 ALJ 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 ALJ 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 ALJ 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 ALJ 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 ALJ 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 ALJ's finding -- albeit an erroneous one -- that the plaintiff had no severe impairment.
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.
In light of the above discussion in the Memorandum, it is hereby ORDERED that:
1) plaintiff's motion for award of attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (1982) (repealed 1984) is GRANTED.
2) plaintiff is awarded attorney's fees of two thousand six hundred and twenty-five dollars ($2,625.00).
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