Thus, “[w]hen the government’s legal position clearly offends established precedent . . . its position cannot said to be ‘substantially justified.’” Washington v. Heckler, 756 F.2d 959, 962 (3d Cir. 1985).
For this purpose, the government’s position includes “not only its litigation position but also the agency position that made the lawsuit necessary.” Id. at 961.
The commissioner has not met his burden. All of the commissioner’s arguments, in fact, fail for the same reason: The ALJ’s failure to explain his treatment of the testimony of plaintiff’s parents was contrary to established Third Circuit precedent. Although the ALJ recite[d] the testimony of plaintiff’s parents, the ALJ fail[ed] to properly explain his consideration of that testimony....
This failure violated the Third Circuit’s directive in Burnett v. Commissioner of Social Security Administration, 220 F.3d 112 (3d Cir. 2000), that the ALJ “must give some indication of the evidence which he rejects and his reason(s) for discounting such evidence,” id. at 121 (emphasis added) – a requirement that exists because “‘[i]n the absence of such indication, the reviewing court cannot tell if significant probative evidence was not credited or simply ignored,’” id. (quoting Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)).
In other words, the ALJ’s failure to explain his disregard of the testimony proffered by plaintiffs’ parents “clearly offends established precedent.” It therefore has no reasonable basis in law.
