The opinion of the court was delivered by: BRODERICK
RAYMOND J. BRODERICK, UNITED STATES DISTRICT JUDGE
By Order with accompanying Memorandum dated January 30, 1989, this Court granted plaintiff Richard Burton's motion for summary judgment on his social security disability claim, remanding the matter to the Secretary for the calculation and award of benefits, 704 F. Supp. 599.
Plaintiff has now filed a motion for the award of attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). The EAJA provides that "a court shall award to a prevailing party other than the United States" reasonable attorney's fees and expenses "incurred by that party in any civil action . . . 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).
It is well established that, under the EAJA, the Government has the burden of proving that its position was substantially justified. Citizens Council of Delaware County v. Brinegar, 741 F.2d 584, 592 (3d Cir. 1984); Dougherty v. Lehman, 711 F.2d 555, 561 (3d Cir. 1983). The meaning of the phrase "substantially justified" in 28 U.S.C. § 2412(d)(1)(A), has been the subject of considerable judicial scrutiny. See generally Note, The Equal Access to Justice Act in the Federal Courts, 84 Colum.L.Rev. 1089 (1984).
In its most recent decision concerning application of the EAJA, the Supreme Court, in Pierce v. Underwood, held that the term "substantially justified" does not mean:
Justified to a high degree, but rather justified in substance or in the main -- that is, justified to a degree that could satisfy a reasonable person . . . To be substantially justified means, of course, more than merely undeserving of sanctions for frivolousness; that is assuredly not the standard for Government litigation of which a reasonable person would approve.
487 U.S. 552, 101 L. Ed. 2d 490, 108 S. Ct. 2541, 2550 (1988). Justice Scalia, writing for the Court, stated that "a position can be justified even though it is not correct, and we believe it can be substantially (i.e., for the most part) justified if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact." Id. at 487 U.S. at 566 n.2, 108 S. Ct. at 2550 n.2.
The definition adopted by the Supreme Court in Pierce v. Underwood, supra, comports with the "reasonable basis both in law and fact" formulation adopted by the Third Circuit. See Russell v. Heckler, 814 F.2d 148, 152-153 (3d Cir. 1987). Indeed, as Judge Hunter held, in Stokes v. Bowen, to carry the burden of proving substantial justification, the Government must show:
(1) [A] reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for the theory [the Government] propounds; and (3) a reasonable connection between the facts alleged and the legal theory advanced.
811 F.2d 814, 816 (3d Cir.1987) quoting Citizens Council of Delaware County v. Brinegar, 741 F.2d 584, 593 (3d Cir. 1984).
It has not and cannot be disputed that plaintiff is the "prevailing party" within the meaning of the EAJA. Therefore, the primary issue before this Court is whether the Secretary has carried the requisite burden, that is, whether substantial justification for the Secretary's position has been demonstrated. In determining whether the Secretary's position was substantially justified, the Court should consider both the position taken by the government in the civil litigation and the agency action upon which the civil action is based. 28 U.S.C. § 2412(d)(2)(D); Washington v. Heckler, 756 F.2d 959, 961 (3d Cir. 1985). We are, however, cautioned against permitting a request for attorney's fees to result in a "second major litigation." Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S. Ct. 1933, 1941, 76 L. Ed. 2d 40 (1983).
Following lengthy agency action, an Administrative Law Judge, in a decision dated July 15, 1987, concluded that the plaintiff was disabled within the meaning of the Social Security Act. On October 27, 1987, the Appeals Council declined to adopt the ALJ's finding and determined that plaintiff was not disabled. The Magistrate to whom this matter was referred recommended that the plaintiff's motion for summary judgment be denied and the Secretary's motion for summary judgment be granted. Objections were filed by plaintiff to the Magistrate's Report and Recommendation, and this Court, upon a de novo review of the record, found that summary judgment should be granted in favor of plaintiff and against the Secretary, remanding the case only for the calculation and award of benefits. The Government argues that the actions of the Secretary at the administrative level were substantially justified. This Court disagrees.
First, the Appeals Council, in rejecting the ALJ's finding of disability failed to afford any weight whatsoever to the previous disability determination rendered by the City of Philadelphia. The law of the Third Circuit is explicit that disability determinations by other administrative agencies, while not binding on the Secretary, must be given "substantial weight" in determining whether an individual is disabled. See Lewis v. Califano, 616 F.2d 73, 76 (3d Cir. 1980); Fowler v. Califano, 596 F.2d 600, 603-604 (3d Cir. 1979). While the Secretary was certainly entitled, in weighing the significance of the disability determination rendered by Philadelphia, to consider plaintiff's subsequent employment history, it was not reasonable for the Secretary, without explanation, to simply ignore the determination of another administrative agency. Indeed, failure to follow or apply settled law is never "substantially justified" under the Equal ...