Adviser to the effect that chronic ulcer disease, the medical condition from which plaintiff suffers, is "almost always medically controllable." However, when confronted with evidence, from the record, that plaintiff regularly smoked cigarettes and drank excessive amounts of alcohol, the Medical Adviser significantly modified her opinion. While the Secretary contends that the record was incomplete and ambiguous concerning whether plaintiff was an alcoholic, we note that plaintiff was, in fact, diagnosed as an alcohol abuser. More importantly, however, given the fact that the nature of plaintiff's alcohol and tobacco use was critical to the medical opinion relied upon by the Secretary in disputing plaintiff's complaints of pain, it was unreasonable for the Secretary, in the four and one-half years this case was pending, to fail to develop the record more fully. We find, therefore, that it was not reasonable for the Secretary to reject plaintiff's subjective complaints of pain and physical incapacitation on the basis of such weak contrary medical evidence.
Third, the Appeals Council, in failing to consider the testimony of the vocational expert regarding plaintiff's vocational profile in determining plaintiff's residual functional capacity, ignored the clear holding of the Third Circuit. It is well established that in cases where significant nonexertional impairments are at issue and medical evidence of record is not dispositive of the determination of the plaintiff's residual functional capacity, the testimony of the vocational expert must be considered. Velazquez v. Heckler, 802 F.2d 680, 682 (3d Cir. 1986).
The record reveals ample evidence of significant nonexertional impairments and the medical evidence of record, standing alone, does not support a determination of plaintiff's residual functional capacity. Accordingly, it was unreasonable to ignore the testimony of the vocational expert that plaintiff "would not be able to return to any activity of productive consequence for which he is trained, experientially and educationally, and therefore would be unable to maintain a consistent work schedule due to the peaks of his symptomology."
For the reasons mentioned above, this Court finds that there was no basis in law or fact for concluding that the plaintiff was not disabled. Accordingly, because the Secretary failed to meet his burden of demonstrating that his position was substantially justified, plaintiff is entitled to an award of attorney's fees.
The EAJA provides that attorney's fees "shall be based upon prevailing market rates for the kind and quality of the services furnished," but "shall not be awarded in excess of $ 75 per hour unless the court determines that an increase in the cost of living or a special factor . . . justifies a higher fee." 28 U.S.C. § 2412(d)(2). Plaintiff requests a 28.3% cost of living adjustment to the $ 75.00 statutory maximum to account for inflation from October 1981, the date of the amendment to subsection (d) to 28 U.S.C. § 2412, through January 1989, calculated in accordance with the Consumer Price Index. Plaintiff did not include the underlying Consumer Price Index figures for October 1981 and January 1989. The Court has, however, determined that the CPI for October 1981 was 279.7 while the CPI for January 1989 was 362.7. Thus, the CPI actually increased by 29.6% from October 1981 through January 1989. As indicated, however, plaintiff has only requested a 28.3% cost of living adjustment. Accordingly, plaintiff requests reimbursement of attorney's fees at an hourly rate of $ 96.25. The Secretary has not opposed plaintiff's computation of the cost of living adjustment.
The Third Circuit has responded favorably to requests for cost of living adjustments, noting that "the cost of living adjustment provision seems designed to provide a disincentive to agencies to prolong the litigation process." Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 703 F.2d 700, 713 (3d Cir. 1983). Moreover, Judge Gibbons, in Allen v. Bowen, held that the consumer price index could be used in determining cost of living adjustment under the EAJA, for purposes of awarding attorney fees in disability benefits cases. 821 F.2d 963 (3d Cir. 1987).
As previously stated, it has taken four and one-half years of conscientious effort on the part of plaintiff's counsel to bring this matter to a close. Accordingly, we find that both inflation and the value of the services performed justifies an upward adjustment of the statutory award of $ 75.00 per hour, to $ 96.25 per hour. See Hirschey v. F.E.R.C., 250 U.S. App. D.C. 1, 777 F.2d 1, 5 (D.C. Cir. 1985); Hoffman v. Heckler, 656 F. Supp. 1136, 1136 (E.D.Pa.1987); Leopold v. Heckler, No. 83-3707 (E.D.Pa. January 27, 1986); Sierra Club v. Marsh, 639 F. Supp. 1216, 1221 (D.Me.1986); Jackson v. Heckler, 629 F. Supp. 398, 405 (S.D.N.Y. 1986).
Plaintiff's counsel has documented 53.2 hours expended in the instant case; a total not challenged by the Secretary. Based upon our review of the submission, we conclude that plaintiff's counsel exercised the necessary "billing judgment" by making a ". . . good faith effort to exclude from a fee request hours that are excessive, reduntant, or otherwise unneccessary." Hensley v. Eckerhart, 461 U.S. at 434, 103 S. Ct. at 1939-1940. Accordingly, this Court will grant plaintiff's motion for attorney's fees in the amount of $ 5120.50.
AND NOW, this 29th day of March, 1989, for the reasons set forth in the Court's Memorandum of March 29, 1989,
IT IS ORDERED:
1. Plaintiff's motion for an award of attorney's fees pursuant to the Equal Access to Justice Act is GRANTED.