(3d Cir. 1984). In this instance, not only was the government's position not supported by substantial evidence, but also there was no reasonable basis for the government's position.
On one final issue, the government's position was "substantially justified." Plaintiff argues that the ALJ improperly "relied on" the grids,
notwithstanding the fact that this case involved significant nonexertional impairments. The government argues the ALJ merely used the grids as a framework.
The Magistrate concluded that the ALJ "relied on" the grids. However, the ALJ explicitly found that the plaintiff's condition "does not specifically coincide with any of the [grids]," and that the grids do not direct the result in this case. Tr. 16. The ALJ then discussed the two grids that most closely fit the plaintiff and, in conjunction with the testimony of the vocational expert, found plaintiff to be not disabled.
The Third Circuit has reserved the question of whether use of the grids to add to the weight of a vocational expert's testimony is proper. See Washington v. Heckler, supra, 756 F.2d at 966-68. The government's position in this instance has a "reasonable" legal basis. Thus, on this issue, the government's position was "substantially justified."
However, based on the crucial issues outlined above, plaintiff is entitled to attorney's fees.
The Amount of Attorney's Fees
The parties disagree over the amount plaintiff's attorneys are entitled to recover. The EAJA provides that "attorney fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living . . . justifies a higher fee." 28 U.S.C. § 2412 (d) (2) (A) (Supp. III 1985).
The Secretary argues that an award in excess of $75 per hour would be improper. The Secretary relies upon the fact that the EAJA was reenacted as of August 5, 1985. The $75 per hour figure was unchanged from the original EAJA. The Secretary argues that if Congress had wanted to adjust the rate to reflect inflation since EAJA's original enactment, it would have done so.
The Secretary relies, most significantly, on Chipman v. Secretary of Health and Human Services, 781 F.2d 545 (6th Cir. 1986) and Cariola v. Schweiker, No. 82-4908 (E.D. Pa. July 22, 1986). In Chipman, the court upheld a district court decision rejecting plaintiff's request for attorney's fees of $100 per hour, and awarding fees of $75 per hour. The court did not hold that awards in excess of $75 per hour would be improper, but rather that "we do not believe the district court abused its discretion in determining that the fees awarded should not exceed $75 per hour even though the cost of living may have indeed risen since the enactment of the EAJA." Chipman v. Secretary of Health and Human Services, supra, 781 F.2d at 547. In Cariola, plaintiffs requested a 10% adjustment for inflation, based upon the Consumer Price Index. The court determined that plaintiff "failed to adequately justify his entitlement to a 10% increase." Cariola v. Schweiker, supra, slip op. at 7. The court noted that there was insufficient "support for the accuracy of [the] 10% figure; and no showing as to why this increase was applicable to hours worked in 1982, 1983 and 1985." Id. Thus, these cases do not stand for the proposition that awards in excess of $75 per hour are necessarily improper.
In this case, plaintiff's attorneys have submitted a Consumer Price Index covering the period from October 1981 to January 1986 in support of their request for fees of $87.25 per hour. This document provides no basis for determining whether the cost of living has changed since the EAJA was reenacted. Thus, plaintiff's attorneys will recover fees at the rate of $75 per hour.
Joseph S. Lord, III, S.J.