In addition, the record before this court at the initial hearing was so incomplete that it was impossible for this court to determine if the ALJ's decision was supported by substantial evidence. Even disregarding plaintiff's weak grip, the court was unable to determine whether the ALJ's finding that plaintiff had the physical strength to perform his previous duties as a janitor was supported by the record.
Finally, the ALJ also failed to address Dr. Paisley's conclusion that plaintiff's "liver problem [and] his general debilitated state preclude him from active participation as a wage earner." Burt v. Schweiker, Civ. No. 81-2895, slip op. at 5 (D.N.J. June 28, 1982). For these reasons the court was compelled to remand the case to the Secretary with specific instructions.
The EAJA provides for an award of fees "unless the court finds that the position of the United States was substantially justified." 28 U.S.C. § 2412(d). There has been a certain amount of debate as to what is the definition of the phrase "position of the United States." While the statute does not define "position" it does state that "United States includes any agency and any official of the United States acting in his or her official capacity." 28 U.S.C. § 2412(d)(2)(C). The Third Circuit has recently stated in Natural Resources Defense Council v. U.S. Environmental Protection Agency, 703 F.2d 700, 707 (3rd Cir. 1983), that the "'position of the United States' means the position taken by any agency and any official of the United States acting in his or her official capacity." The court noted that "a significant number of well reasoned opinions have held that the underlying conduct of the agency, not merely its trial conduct, must be considered." Id. at 707. The court then concluded that "the word 'position' refers to the agency action which made it necessary for the party to file suit." Id.
Thus the Dougherty test, which states that the government's position is substantially justified if its case had a reasonable basis in law and fact, applies to any agency action relevant to this litigation. Accordingly, the court may consider the ALJ's disposition of the case as well as the arguments made by the Secretary before the court. By applying the Dougherty test to the ALJ's initial denial of benefits, it becomes clear that the government's position was not substantially justified. The ALJ's failure to address uncontradicted medical evidence and testimony regarding plaintiff's weak grip and liver disorder, coupled with the fact that the record before this court was so incomplete, provides ample evidence that the government's position, at the time of the initial remand, was not substantially justified.
D. The Government's Position on or Before the Court's April 13, 1984 Reversal
After this court's remand, the ALJ awarded benefits for a period beginning on April 27, 1982. That decision was affirmed by the Appeals Council and plaintiff again appealed to this court. After reviewing the record, this court noted that there was "medical evidence by treating and examining physicians that was highly probative and supportive of the plaintiff's claim. As such, the ALJ's failure to explain his implicit rejection of this evidence, or even to mention any of it, was error." Burt v. Heckler, Civ. No. 81-2895, slip op. at 3 (D.N.J. April 13, 1984). This court also noted that while the ALJ stated that the medical reports in the Secretary's previous opinion were incorporated by reference in the present decision, the ALJ in fact never referred to any of those reports. Finally, the ALJ was criticized for failing to discuss the medical evidence put forth by plaintiff which supported his contention that he was disabled, and that such disability arose in August, 1979.
In light of these errors, evidence put forth by the government in defense of its position is not persuasive. Testimony by certain physicians that plaintiff's bronchitis was moderate and his arms and joints remained normal did not contradict the medical evidence which established cirrhosis of the liver and weak grip of the hands. The evidence put forth by the government simply does not prove that the government's position throughout this litigation was substantially justified.
This is particularly true in a case such as this "where the plaintiff has been required to wait over four years to have his claim properly determined." Id. at 4. The legislative history of 28 U.S.C. § 2412 suggests that "where a party has had to engage in a lengthy administrative proceeding before final vindication of his or her rights in the courts, the government should have to make a strong showing to demonstrate that its action was reasonable." Smith v. Heckler, 739 F.2d 144 (4th Cir. 1984), citing Tyler Business Services v. National Labor Relations Board, 695 F.2d 73, 75 (4th Cir. 1982). This philosophy was echoed in Watkins v. Harris, 566 F. Supp. 493 (E.D. Pa. 1983), a case quite similar to this one. In Watkins, the plaintiff obtained a remand upon his initial appeal and later obtained his benefits after he again appealed to the District Court. The court stated that:
This case is precisely one to which Congress intended the EAJA to apply. The government's failure to correct its original errors on remand necessitated a second appeal; without the persistence of counsel, plaintiff's benefits would not have been forthcoming.
Id. at 498.
E. The Fee Award
For the reasons set forth above, the court finds that the government has not carried its burden of demonstrating that its position was substantially justified. Therefore, the plaintiff's motion for fees will be granted. The court now turns to the proper amount of those fees.
The plaintiff has requested an hourly rate of $77.86 for services rendered by his attorney. The EAJA expressly states that attorney's fees 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 such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee. 28 U.S.C. § 2412(d)(2)(A). None of those circumstances are involved here, and the fee award will be set at $75 per hour.
The plaintiff has requested compensation for 21 3/4 hours of attorney work. As the government correctly points out, plaintiff may not recover for the one and one-quarter hours of attorney work performed in connection with the initial review of plaintiff's claim by the Appeals Council in April 1981. Work performed by counsel at the administrative level is not compensable under the EAJA. The recovery of fees for services rendered before a governmental agency under the EAJA is limited by 28 U.S.C. § 2412(d)(3) to any action for judicial review of an adversary adjudication as defined in 5 U.S.C. § 504(b)(1)(C). That section defines the term "adversary adjudication" as an adjudication ". . . in which the position of the United States is represented by counsel. . . ." 5 U.S.C. § 504(b)(1)(C). Because the government is not represented by counsel in social security hearings, the attorney time incurred in connection with the initial review of plaintiff's claim by the Appeals Council is not compensable. Guthrie v. Schweiker, 718 F.2d 104, 108 (4th Cir. 1983); Watkins v. Harris, 566 F. Supp. 493 (E.D. Pa. 1983). Accordingly, plaintiff will receive compensation for 20 1/2 hours of attorney work.
The government also argues that the 12 hours of effort invested by the attorney's law clerk should not be compensated at an hourly rate of $75.00 as plaintiff has requested. The government contends that $7.00 an hour, the law clerk's hourly wage, is a more reasonable rate.
The court does not agree. In Blum v. Stenson, 465 U.S. 886, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984), the Supreme Court held that fee awards under 42 U.S.C. § 1988 for a nonprofit legal services organization should be based on prevailing market rates. The Court rejected the government's argument, analogous to its argument here, that the fee award should be calculated according to a cost-based standard. Upon reviewing the record it is clear that the time spent by the attorney's law clerk was well invested. The EAJA provides that ". . . the amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of services furnished. . . ." 28 U.S.C. § 2412(d)(2)(A). An hourly rate of $25.00 clearly is not excessive and appears to correspond to the market rate requirements set forth in the statute. NAACP v. Donovan, 554 F. Supp. 715, 719 (D. D.C. 1982) (awarding $35/hour for work done by a law clerk); Poston v. Fox, 577 F. Supp. 915, 920 (D.N.J. 1984) (awarding $35/hour for paralegal work). Reducing this hourly rate would only discourage the use of law clerks who operate at a significantly lower hourly rate than attorneys.
The court, therefore, will grant plaintiff's motion for fees under the EAJA for a total of 20 1/2 hours of attorney time compensated at $75 an hour, and 12 hours of law clerk time compensated at $25 an hour, for a total award of $1837.50. An appropriate order will be entered.
This matter having come before the court on the 6th day of July, 1984; and
The court having considered the motion and submissions of the parties; and
For the reasons stated in the court's opinion filed this date,
It is on this 19th day of September, 1984, hereby ORDERED that plaintiff's motion for an award of attorney's fee under the Equal Access to Justice Act is GRANTED in the amount of $1837.50.