The opinion of the court was delivered by: MCLAUGHLIN
McLAUGHLIN, District Judge
On August 16, 1982, adopting the findings contained in the Report and Recommendation of United States Magistrate A. Simon Chrein, I reversed the decision of the Secretary of Health and Human Services (the "Secretary"), and remanded the case for the calculation of plaintiff's benefits under the Social Security Act, 42 U.S.C. § 405(g). Counsel for plaintiff, Brooklyn Legal Services Corporation B, now moves for an award of attorney's fees, pursuant to the Equal Access to Justice Act, ("EAJA"), 28 U.S.C. § 2412(d)(1)(a) (1980).
The EAJA provides, in relevant part, that a Court:
shall award to a prevailing party other than the United States fees and expenses . . . incurred by that party in any civil action . . . brought by or against the United States . . . 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).
The Secretary opposes an award of attorney's fees on the following grounds: (1) the Government's position in attempting to sustain the Secretary's denial of benefits was "substantially justified"; (2) the attorney's fees were not "incurred" by plaintiff because she was represented by a legal services organization free of charge; and (3) in the event that an award is granted, no award should be made for legal services performed prior to the effective date of the EAJA. The request for attorney's fees is granted.
(1) The Congressional Committee reports on the EAJA indicate that "[t]he test of whether or not Government action is substantially justified is essentially one of reasonableness. Where the Government can show its case had a reasonable basis both in law and in fact, no award will be made."
H. Rep. No. 96-1418, p. 10, 96th Cong.; 2d sess., reprinted in  U.S. Code Cong. & Ad. News 4984, 4989; see also S. Rep. No. 96-253, 96th Cong., 1st Sess. By placing the burden on the Government to prove the reasonableness of its position, the EAJA is "intended to caution agencies to carefully evaluate their case and not to pursue those which are weak or tenuous." H. Rep. No. 96-1418 at 14, reprinted in  U.S. Code Cong. & Ad. News at 4993.
When the Secretary has applied the proper legal principles, judicial review is limited to the question whether the findings of fact are supported by substantial evidence. Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980); Chiappa v. Secretary of Dept. of Health, Education and Welfare, 497 F. Supp. 356, 359 (S.D.N.Y. 1980).This question is usually "not wholly free from doubt" because of conflicting evidence in the record. See Smith v. Schweiker, No. 80 - 0258 (E.D.N.Y. August 25, 1982). The Government's attempt to sustain the administrative decision may therefore be reasonable, even if the Court ultimately determines that the decision was not supported by substantial evidence. See Wolverton v. Schweiker, 533 F. Supp. 420, 425 (D.Id. 1982) (Government's attempt to sustain Secretary's decision reasonable unless no evidence in the record supported decision).
The issue in this case, however, is not merely whether the Secretary's decision is supported by substantial evidence. Rather, there is a serious question as to the correctness of the legal standard applied by the ALJ. Indeed, it is evident from the ALJ's statement of the law that he was proceeding under a legal principle that is contrary to the well-established law of this Circuit. See Report and Recommendation of Magistrate A. Simon Chrein, August 4, 1982, at 10-14.
The ALJ dismissed plaintiff's complaints of severe pain solely because, in his view, "the objective medical evidence does not demonstrate any condition or conditions which would be productive of severe pain." (Tr. at p. 83) The law in this Circuit is clear, however, that subjective pain may establish disability even where the pain is unsupported by clinical or medical findings. McLaughlin v. Secretary of Health, Education and Welfare, 612 F.2d 701, 704-05 (2d Cir. 1980); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979).
Apart from his misconception of the law, the ALJ relied solely on the opinion of a medical advisor, Dr. Plotz, who reviewed plaintiff's medical records and observed her at the hearing, but never examined her. Dr. Plotz dismissed plaintiff's complaints of severe pain as exaggerated. While conceding that objective medical evidence indicated the existence of a spinal condition that could produce some pain, he opined that the pain was not severe or disabling. The ALJ simply disregarded the opinions of plaintiff's two treating physicians, both of whom considered plaintiff to be "totaly disabled" by her back condition and its accompanying pain. (Tr. at pp. 198, 199)
The ALJ thus contravened the Second Circuit's rule that, in the absence of substantial contradictory evidence, the opinion of a claimant's treating physician is binding on the Secretary. Hankerson v. Harris, 636 F.2d 893 (2d Cir. 1980); Chiappa v. Secretary, supra, 497 F. Supp. at 360. The opinion of the medical advisor, evidently preferred by the ALJ because it conformed to his erroneous belief in the necessity of objective medical evidence of severe pain, did not constitute substantial evidence supporting a determination that plaintiff is not disabled.
Defendant's attempt to sustain a decision obviously lacking "a reasonable basis both in law and in fact", H.R. Rep. No. 96-1418, p. 10,  U.S. Code Cong. & Ad. News 4984, 4989, was thus not substantially justified.
(2) Defendant next contends that no award of attorney's fees should be made because plaintiff did not "incur" any attorney's fees since she was represented by Brooklyn Legal Services Corporation B, a government-funded organization providing free legal services to indigent ...