The opinion of the court was delivered by: Joyner, C.J.
This civil action is before the Court on Motion of the Plaintiff, Tanya Clark, for Attorney Fees Under the Equal Access to Justice Act, 28 U.S.C. §2412 ("EAJA"). For the reasons set forth below, the Motion shall be denied.
Plaintiff commenced this action in March, 2010 pursuant to Chapter 7 of the Social Security Act, 42 U.S.C. §405(g)("Act"), to obtain judicial review of the final decision of the Commissioner of Social Security to deny her request for Supplemental Security Income ("SSI") benefits pursuant to Title XVI of the Act.*fn1 Specifically, Plaintiff asserted the following errors on the part of the Commissioner and Administrative Law Judge who oversaw the hearing on her benefits application:
(1) failing to find that the severity of her chronic heart failure met the requirements of section 4.02 of the listing of impairments;
(2) completely rejecting the opinion of her treating cardiologist;
(3) improperly relying on testimony by the vocational expert which is not consistent with the Dictionary of Occupational Titles ("DOT"); and
(4) failing to properly evaluate and weigh her testimony and other subjective statements.
The matter was referred to U.S. Magistrate Judge Linda K. Caracappa for review and preparation of a Report and Recommendation. Judge Caracappa issued her Report and Recommendation on January 31, 2011, finding first, that the record supported and the ALJ sufficiently explained why Plaintiff's chronic heart failure did not meet the severity criteria of section 4.01. ( R & R, p. 21). Second, Judge Caracappa concluded that "the ALJ was justified in not affording controlling weight to Dr. Hankins' opinions, despite that she is plaintiff's treating cardiologist," and that "substantial evidence exists for the ALJ's adverse credibility finding." Thus, she was "unpersuaded by plaintiff's argument that the ALJ did not properly follow pertinent regulations in evaluating plaintiff's subjective complaints." ( R & R, pp. 21, 25). Noting that while it is true that "the ALJ is required to give great weight to a plaintiff's testimony of subjective complaints," Judge Caracappa likewise found that an "ALJ has the right, as the fact finder, to reject partially, or even entirely, such subjective complaints if they are found not credible." (R & R, p. 24). And, finding that substantial evidence existed to justify an adverse credibility assessment, Judge Caracappa found no basis on which to reverse or remand the ALJ on the fourth assignment of error. ( R & R, p. 25).
As to the third assignment of error, however, Judge Caracappa noted that the ALJ accepted the vocational expert's testimony that Ms. Clark could "perform the representative occupations of telephone information clerk and charge account clerk, both occupations requiring a reasoning level of 3 according to the DOT." This testimony was:
"inconsistent with the ALJ's determination that plaintiff be limited to simple, routine tasks. Because the ALJ did not inquire of the VE how plaintiff can perform either of these jobs, which have reasoning levels of 3, while the ALJ restricted plaintiff to simple, routine tasks, a conflict exists. The ALJ did not discharge his duty, pursuant to SSR-004p, to inquire about the conflict on the record and to explain in his decision how the discrepancy was resolved. ... Further, because our review of the record does not reflect substantial evidence that plaintiff can perform jobs with a reasoning level of 3, a remand is appropriate so that the ALJ can explain these inconsistencies." ( R & R, p. 23, internal citations omitted).
Thus, Judge Caracappa recommended that the matter be remanded to the Commissioner of Social Security for further proceedings to rectify this omission on the part of the ALJ. No objections were filed to the Report and Recommendation and it was approved by this Court in an Order entered on March 4, 2011. On May 23, 2011, Plaintiff's attorney filed the Motion for Attorney's Fees with which we are here concerned.
As noted, the Plaintiff moves to recover counsel fees pursuant to the Equal Access to Justice Act, 28 U.S.C. §2412. Subsection ...