102 Ga. App. 96 (1960)
115 S.E.2d 607
MEADERS et al.
v.
JONES.
38373.
Court of Appeals of Georgia.
Decided June 22, 1960.
Rehearing Denied July 12, 1960.
*98 David L. Mincey, John D. Hemingway, for plaintiffs in error.
Walter Smith, Buford E. Hancock, contra.
TOWNSEND, Judge.
1. It is contended by the plaintiff in error, first, that there is no evidence to justify a verdict in *99 favor of the plaintiff, and, secondly, that the plaintiff is not entitled to recover except under the terms of a contract as pleaded and proved by himself. It is always true that one cannot recover on a cause of action, no matter how well sustained by proof, which is different from or at material variance with the cause of action set out in the declaration. Williams v. Eldridge, 53 Ga. App. 445 (186 S. E. 217); Central R. & Bkg. Co. v. Cooper, 95 Ga. 406 (22 S. E. 549); Dixie Ornamental Iron Co. v. Parrish, 91 Ga. App. 11 (84 S. E. 2d 716). There was, however, some slight evidence to sustain the contract as alleged between the plaintiff and Simmons, because of the plaintiff's testimony that Simmons was not only the defendant's agent in charge of the building but was in fact continuing to operate with him in a partnership relation. It is not necessary, however, to sustain the verdict on this theory. It was not denied that an oral contract existed between the parties; that the subject matter of the contract was the laying of brick and cement blocks on the project in question; that this contract was at least in part performed. The plaintiff contended that one of the terms of the contract was a rate of $45 per thousand for brick, as against the defendant's contention of $41 per thousand. As was stated in McClelland v. Carmichael Tile Co., 94 Ga. App. 645, 649 (96 S. E. 2d 202): "A fair evaluation of the record shows, not that the plaintiff proved a contract different from the contract alleged, but that both the plaintiff and the defendant agreed upon the existence of the same contract, and the only dispute was as to one of its terms  that is, the amount to be paid for the services performed." Under the defendant's own pleadings he was indebted to the plaintiff under this contract for the sum of $543, subject to the sums sought to be recovered in the cross-action. The jury is at liberty, where the evidence is in dispute, to believe a part of the evidence of one witness while rejecting other parts, and to combine that portion of the testimony which they believe with a part of the testimony of other witnesses in the case. Scott v. Imperial Hotel Co., 75 Ga. App. 91 (42 S. E. 2d 179). In this action, and although Simmons did not testify for either side, the preponderance of evidence strongly points to the conclusion that the plaintiff did *100 have the conversation with Simmons to which the plaintiff testified; that Simmons was, at least, an agent of the defendant who handled some of the subcontracts on the project in question; that, however, the defendant had a later conversation with the defendant, to which the defendant testified, at which time he agreed to lay the brick at $41 per thousand provided the defendant made no profit on the project, and that as a matter of fact the defendant lost money on that construction. Both the price and the amount of work were in dispute. The jury might well have accepted the defendant's figure as to the rate of work and the plaintiff's figure as to the amount of work; they would then have returned a verdict for the plaintiff of between $1200 and $1600, according to how much they found had already been paid, which figure would have been further modified if, had they accepted the plaintiff's figure and arrived at approximately $1600, they had then set off certain items sued for in the crossaction, particularly those relating to expenses of scaffolding, as to which the preponderance of evidence supported the defendant's contentions. In such event a verdict of $1400 would seem not only sustainable but supported by a preponderance of all the evidence in the case. The general grounds of the motion for a new trial are accordingly without merit.
2. The special grounds relating to the failure of the court to charge without request on certain issues of law are not argued in the briefs of the plaintiff in error. However, the charge as a whole was full and fair, and it was not error in the absence of request to fail to charge the language set out in the two special grounds. Equitable Credit Corp. v. Johnson, 86 Ga. App. 844 (8) (72 S. E. 2d 816); Carlisle v. Ragan-Malone Co., 17 Ga. App. 435 (2) (87 S. E. 608).
The trial court did not err in denying the motion for new trial.
Judgment affirmed. Gardner, P. J., Carlisle and Frankum, JJ., concur.


1 F.3d 571
42 Soc.Sec.Rep.Ser. 17, Unempl.Ins.Rep. CCH  17453AHarold W. DOTSON, Plaintiff-Appellant,v.Donna E. SHALALA,* Secretary of the Departmentof Health and Human Services of the United Statesof America, Defendant-Appellee.
No. 92-3148.
United States Court of Appeals,Seventh Circuit.
Argued April 6, 1993.Decided Aug. 2, 1993.

Thomas M. Henry, Peoria, IL (argued), for plaintiff-appellant.
Michael C. Messer (argued), Dept. of Health and Human Services, Region V, Office of Gen. Counsel, Chicago, IL, K. Tate Chambers, Asst. U.S. Atty., Peoria, IL, for defendant-appellee.
Before RIPPLE and MANION, Circuit Judges, and ENGEL, Senior Circuit Judge.**
ENGEL, Senior Circuit Judge.

1
Harold Wayne Dotson, a Supplemental Security Income claimant, appeals the district court's grant of summary judgment in favor of Donna E. Shalala, Secretary of the Department of Health and Human Services.  In granting summary judgment, the district court upheld an administrative law judge's finding that Dotson was engaging in substantial gainful activity by supporting a $200- to $300-per-day heroin and cocaine habit through illegal means.  See Dotson v. Sullivan, 813 F.Supp. 651 (C.D.Ill.1992).  Because we agree that illegal activity can constitute substantial gainful activity, we affirm.

I. BACKGROUND

2
Dotson applied for Supplemental Security Income benefits on September 25, 1989, alleging disability since 1968 due to asthma, multiple allergies, and past drug abuse.  The Social Security Administration denied his application on January 10, 1990, and again upon reconsideration on May 21, 1990.  Dotson then requested and received a hearing before an administrative law judge ("ALJ").  At the administrative hearing, Dotson testified that he uses $200 to $300 worth of heroin and cocaine each day.  Additionally, he testified that he supports his drug habit by hustling.  When asked to define hustling, Dotson replied:  "steal, beg, whatever, you know."

3
With regard to his begging, Dotson stated that he usually panhandles at the Warner Homes, which are located in a poor neighborhood in Peoria, Illinois.  As to Dotson's thievery, the following colloquy occurred during the administrative hearing:

4
Q.  [By ALJ] Where do you steal at?

5
A. [By Dotson] You can do that anywhere.  Wherever we can find a place to.

6
Q. Give me an idea.  Give me some examples.

7
A. The mall, downtown, wherever.  You just ride and look and, you know.

8
Q. How long do you spend riding and looking until you find a place to steal?

9
A. As long as you have to.

10
Q. Like how long?

11
A. Sometime--

12
Q. All day long?

13
A. Sometimes it takes all day.

14
Q. What kinds of things have you stolen this month?

15
A. This month?

16
Q. Uh huh.

17
A. I, well, I like to, I try to concentrate on saws.

18
Q. On what?

19
A. Saws.

20
Q. Saws?

21
A. You know, the chainsaws, the little bitty chainsaws?

22
Q. Where do you find those at?

23
A. Everywhere, everywhere.

24
Q. And once you get them, what do you do with them?

25
A. You sell them.

26
Q. To who?

27
A. A lot of people buy.

28
Q. Well, where do you find--I wouldn't imagine there would be a lot of demand for them in Warner homes.

29
A. No.

30
Q. Where do you go to sell the chainsaws?

31
A. Different businesses.

32
Q. Like what?

33
A. Small businesses.

34
Q. Give me some examples.

35
A. Like small stores or cleaners, different places like that.

36
Q. Do you have to travel around to these places?   How long does it take you to find somebody to buy a saw?

37
A. Usually, they already, you have been--you kind of already know they probably want one.

38
Q. So you have already canvassed these places earlier?   You have gone out and--

39
A.  No, you have probably sold them stuff and they can give you kind of an idea about what else they might like, you know.

40
Based on Dotson's testimony, the ALJ found that Dotson's stealing and panhandling constituted substantial gainful activity ("SGA") worth an average of approximately $5,600 per month and, accordingly, denied his claim for SSI benefits.  Specifically, the ALJ found that, due to the poor area in which Dotson panhandles, the bulk of his income must come from illegal means.  As to the nature of Dotson's criminal endeavors, the ALJ concluded:

41
In order to steal he must "case" the area in which he has determined to steal the property.  He must then plan on how he is going to steal the property and then actually steal it.  During the month in which the hearing was held the claimant was stealing chainsaws.  Lifting and carrying the chainsaws would also be significant physical activity.  The planning and execution of the larceny entails significant mental activity.  From these activities the claimant earns enough money to support his cocaine habit and provide him with other money in substantial amounts exceeding $200 to $300 a day.  [Emphasis in original.]

42
On July 9, 1991, the Appeals Council declined to review the ALJ's decision.  Dotson then filed the instant action against the Secretary of the Department of Health and Human Services ("Secretary") in federal court.  On July 1, 1992, with cross-motions for summary judgment before it, the district court granted the Secretary's motion for summary affirmance and entered a separate judgment against Dotson and in favor of the Secretary.  See Dotson v. Sullivan, 813 F.Supp. 651 (C.D.Ill.1992).  This appeal followed.

II. DISCUSSION

43
Dotson essentially raises four arguments.  First, he believes that illegal activities undertaken solely to satisfy a drug addiction cannot constitute SGA.  Second, assuming that illegal activity can constitute SGA, Dotson claims that the ALJ's finding of SGA in his case is unsupported by substantial evidence.  Third, Dotson contends that if illegal activity undertaken to support a drug habit can constitute SGA, then the Secretary is required to deduct the cost of the narcotics from the claimant's income as an impairment-related work expense.  Fourth and finally, Dotson believes that using illegal activities to furnish the basis for finding SGA denies him due process and equal protection of the laws under the United States Constitution.

44
A. OVERVIEW.

45
The Social Security Act ("Act"), as amended, 42 U.S.C. Sec. 301 et seq., provides for the payment of benefits to disabled persons.  Title II of the Act governs the payment of Old-Age, Survivors, and Disability Insurance ("OASDI") benefits to disabled persons who have contributed to the Social Security program.  42 U.S.C. Sec. 401 et seq.   Title XVI of the Act, the title under which Dotson filed his application for benefits, provides for the payment of Supplemental Security Income ("SSI") benefits to disabled persons who are indigent.  42 U.S.C. Sec. 1382 et seq.;   see generally Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2290, 96 L.Ed.2d 119 (1987).  Both Titles II and XVI define disability as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months...."  42 U.S.C. Secs. 423(d)(1)(A), 1382c(a)(3)(A).

46
Pursuant to statutory authority, the Secretary has promulgated regulations establishing a five-step sequential analysis for determining whether an SSI claimant is disabled.  See 20 C.F.R. Sec. 416.920;  Sullivan v. Zebley, 493 U.S. 521, 525, 110 S.Ct. 885, 888, 107 L.Ed.2d 967 (1990).1  The first step of the process, and the only one relevant for purposes of this appeal, requires the Secretary to determine whether the claimant is engaging in SGA.  See 20 C.F.R. Sec. 416.920(a).  A finding of SGA means that the claimant is ineligible for SSI benefits.  Id. at Sec. 416.920(b);  Yuckert, 482 U.S. at 140, 107 S.Ct. at 2290.   In this case, because the ALJ found that Dotson's stealing and panhandling constituted SGA, he denied Dotson's claim for benefits without moving to the next step in the sequential analysis.2

47
B. ILLEGAL ACTIVITY AS SGA.

48
Our research reveals that we are the first appellate court to address the issue of whether illegal activity can support a finding of SGA.  The handful of federal trial courts faced with this question, including the district court below, have answered unanimously in the affirmative.3  Because the ALJ and district court's determination that illegal activity can constitute SGA is a construction of the Secretary's regulations, we review this decision of law de novo.  See Johnson v. Sullivan, 922 F.2d 346, 356 (7th Cir.1990).

49
As the definition of disability quoted above indicates, the inability to engage in SGA is a statutory prerequisite to obtaining either SSI or OASDI benefits.  Nonetheless, Congress delegated to the Secretary the responsibility for defining SGA.  42 U.S.C. Sec. 1382c(a)(3)(D) (Title XVI).  In response to the Act's mandate, and as the components of the term suggest, the Secretary has defined SGA as "work activity that is both substantial and gainful."   See 20 C.F.R. Sec. 416.972.  Work activity is substantial if it "involves doing significant physical or mental activities."   Id. at Sec. 416.972(a).  Work activity is gainful if it is "the kind of work usually done for pay or profit, whether or not a profit is realized."   Id. at Sec. 416.972(b);  see generally Callaghan v. Shalala, 992 F.2d 692 (7th Cir.1993) (discussing elements of SGA).4  Activities such as taking care of one's self, performing household tasks, engaging in hobbies or therapy, and attending school, clubs, or social programs generally do not constitute SGA.  20 C.F.R. Sec. 416.972(c).

50
The foregoing framework underscores the dual nature of an ALJ's inquiry into whether a claimant is engaging in SGA.  Under the substantiality prong of the analysis, an ALJ considers the nature of the undertakings comprising the claimant's work activity.  Thus, the degree to which a claimant's work requires the use of "expertise, skills, supervision and responsibilities" becomes relevant in determining whether that work constitutes SGA.  See 20 C.F.R. Sec. 416.973(a).  Additionally, an ALJ will consider how well a claimant performs his or her work activities:

51
If you do your work satisfactorily, this may show that you are working at the substantial gainful activity level.  If you are unable, because of your impairments, to do ordinary or simple tasks satisfactorily without more supervision or assistance than is usually given other people doing similar work, this may show that you are not working at the substantial gainful activity level.  If you are doing work that involves minimal duties that make little or no demands on you and that are of little or no use to your employer, or to the operation of a business if you are self-employed, this does not show that you are working at the substantial gainful activity level.

52
Id. at Sec. 416.973(b).

53
In evaluating the gainfulness of a claimant's work, an ALJ's inquiry is more circumscribed.  Here, as noted above, the claimant's undertakings need be only of the type that normally result in pay or profit.  In other words, a claimant can be found to be engaging in SGA without earning any income.  See Callaghan, 992 F.2d at 695-96 (unprofitable business owner was engaging in SGA).5  This is not to say that a claimant's earnings are irrelevant for purposes of determining whether he or she is engaging in SGA.  See, e.g., 20 C.F.R. Sec. 416.974(a)(1).  To the contrary, a claimant who earns on average less than $300 per month is presumed not to be engaging in SGA, while a claimant who makes more than an average of $500 per month is presumptively ineligible for SSI benefits.  Id. at Secs. 416.974(b)(3)(vii), (b)(2)(vii).6  As with most legal presumptions, however, these income guidelines are rebuttable and "do not relieve an ALJ of the duty to develop the record fully and fairly."  Dugan v. Sullivan, 957 F.2d 1384, 1390 (7th Cir.1992) (citations and internal quotations omitted).

54
Against this background, Dotson concedes--as he must--that in at least some instances illegal activity can be substantial gainful activity.  Dotson continues, however, that the context in which his thievery occurs precludes its use in determining whether he has been engaging in SGA.  In his own words:

55
A drastic distinction exists between a person who is engaged in illegal activity for effectively the equivalent of a legal career such as being a drug dealer, illegal drug importer or other illegal activity which has counterparts in lawful activities such as business managers, business owners and the like, and a thief who steals merely to feed the cravings of unquenchable drug addiction.

56
Aplnt's. Br. at 18.  Considering Dotson's claim under the scheme set forth above, we conclude that he forwards a distinction without a difference.

57
Admittedly, even a cursory examination of the regulations reveals that the Secretary envisioned their application within a traditional employment context.  Importantly, however, nothing in the Act or its regulations specifically requires SGA to be lawful.  This silence, we believe, suggests that illegal activities can constitute SGA.  The inference is strengthened, moreover, when considering that the relevant considerations noted above apply with almost equal ease irrespective of the legality of the activities involved.  Thus, one can envision a number of illegal activities that might not rise to the level of SGA.7  Whether legally or illegally employed, the regulations direct an ALJ to focus on whether the claimant is performing significant physical or mental activities, and doing so with the intent of earning money or making a profit.

58
Moreover, it must be remembered that an ALJ performs the SGA analysis as one of five steps used to determine whether a person is disabled and, consequently, unable to function within our economy.  A claimant who can manage through illegal means is just as undeserving of benefits as a claimant who can survive without violating the law.  For this reason, there is no difference between the addict who spends all of his lawfully derived earnings on narcotics and the one who illegally obtains, and then exhausts, her income.  Both are fueled, to quote Dotson, by the "cravings of unquenchable drug addiction."   The only real distinction between the two--the lawfulness of their income--finds no cognizance under the Act and its interpretive regulations.8

59
Finally, our conclusion that illegal activity can constitute SGA derives substantial support from the well-established tax principle that unlawful earnings come within the meaning of the term "gross income" and are thus taxable.  See, e.g., James v. United States, 366 U.S. 213, 218, 81 S.Ct. 1052, 1054, 6 L.Ed.2d 246 (1961) (plurality opinion of Warren, C.J.), overruling Commissioner v. Wilcox, 327 U.S. 404, 66 S.Ct. 546, 90 L.Ed. 752 (1946);  United States v. Sullivan, 274 U.S. 259, 263, 47 S.Ct. 607, 607, 71 L.Ed. 1037 (1927).  Notably, the Act has adopted the tax code's definition of gross income for purposes of determining whether a SSI claimant's income is sufficiently high so as to render him or her ineligible for benefits.  42 U.S.C. Sec. 1382(d);  see also 20 C.F.R. Sec. 416.1110(b).9  Indeed, one of the concerns motivating the plurality in James, "to remove the incongruity of having the gains of the honest laborer taxed and the gains of the dishonest immune," 366 U.S. at 218, 81 S.Ct. at 1054, provides the crux of our reasoning in this case.

60
C. SUFFICIENCY OF THE EVIDENCE.

61
Having concluded that illegal activity can constitute SGA, we must next determine whether the ALJ properly applied the legal standard in Dotson's case.  Our inquiry is a limited one.  We will not decide facts anew, reweigh evidence, or substitute our judgment for the Secretary's.  Shroeter v. Sullivan, 977 F.2d 391, 394 (7th Cir.1992).  Rather, we look to see whether "substantial evidence" supports the ALJ's findings.  See 42 U.S.C. Sec. 1383(c)(3) (citing 42 U.S.C. Sec. 405(g)).  Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."  Richardson v. Perales, 402 U.S. 389, 402, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).

62
Dotson first contends that the ALJ had before him no evidence of specific illegal acts which could support a finding of SGA.  Secondly, he believes the ALJ erroneously assumed that he paid full street-value for the narcotics he used and, thus, overestimated the amount of income needed to support his drug habit.  We address each claim in order.10

63
Dotson's first claim, that the record lacks any evidence of illegal activities, is belied by his own testimony and by the reasonable inferences drawn therefrom by the ALJ.  For example, when the ALJ asked Dotson to describe what types of items he had stolen in the month during which the administrative hearing was held, Dotson replied:  "I try to concentrate on saws....  You know, the chainsaws, the little bitty chainsaws."   Dotson then went on to explain, in some detail, how he would sell the stolen items.  Additionally, the ALJ made at least one specific inquiry into the substantiality of Dotson's activities, asking him how long it takes him to find a place to steal.

64
We grant to Dotson his point that the record contains no evidence concerning any specific act of thievery.  Also, we agree with him that the ALJ could have more fully developed the record as to the nature of his criminal undertakings.  Nevertheless, we cannot say that the record before us contains less than substantial evidence that Dotson's thievery required the significant use of his physical and mental skills, and that those skills were applied within a context designed to produce pay or profit.  See 20 C.F.R. Secs. 416.972(a), (b).  In short, Dotson's testimony allowed the ALJ to reasonably conclude that the effort required to steal the chainsaws with regularity constituted SGA, and we therefore uphold this aspect of the ALJ's decision.  A more exacting inquiry, while desirable, was not required.

65
Dotson's second argument, that the ALJ overestimated the cost of the narcotics, is also unpersuasive.  As an initial matter, this claim suffers from the same weakness that proved fatal to his first argument, that is, Dotson testified without contradiction to using $200 to $300 worth of heroin and cocaine daily.11  If Dotson actually paid less for his narcotics, one would have expected him to testify accordingly.  Furthermore, this case is unlike Curtis v. Sullivan, 764 F.Supp. 119 (N.D.Ill.1991), where the ALJ simply imputed to the claimant an income sufficient to satisfy his addiction.  In that case, the ALJ concluded, in the absence of evidence as to legal or illegal employment, that the claimant had to be engaging in SGA in order to support his expensive drug habit.  Here, on the other hand, Dotson's testimony as to his thievery filled the gap.  From this, the ALJ was justified in finding that Dotson's earnings surpassed $500 per month, thereby rendering him presumptively ineligible for SSI benefits.  See 20 C.F.R. Sec. 416.974(b)(2)(vii).

66
We agree with the court in Curtis that simply because a claimant has a severe and expensive drug habit does not mean that the person is engaging in SGA to support it.  764 F.Supp. at 120-21.   The record must contain substantial evidence, of the type outlined in Section II(B), supra, that the claimant is engaging in legal or illegal activities that are substantial and gainful.  Because we have held that the ALJ's decision in this case comports with those requirements, we reject Dotson's challenge to the evidence supporting the Secretary's decision.

67
D. NARCOTICS AS AN IMPAIRMENT-RELATED WORK EXPENSE.

68
Dotson next raises the interesting yet ultimately unavailing argument that, if illegal activities undertaken to maintain a drug habit can constitute SGA, then the cost of the narcotics must be deducted from income as an impairment-related work expense ("IRWE") under 42 U.S.C. Sec. 1382a(b)(4)(B)(ii) and its interpretive regulations, 20 C.F.R. Sec. 416.976.  As we discuss below, Dotson misapprehends the nature of IRWEs.

69
42 U.S.C. Sec. 1382a(b)(4)(B)(ii), enacted as part of the Social Security Disability Amendments of 1980, Pub.L. No. 96-265, 94 Stat. 441 (1980), provides:

70
In determining the income of an individual (and his eligible spouse) there shall be excluded ... if such individual (or such spouse) is disabled but not blind (and has not attained age 65, or received benefits under this subchapter (or aid under a State plan approved under section 1352 or 1382 of this title) for the month before the month in which he attained age 65) ... such additional amounts of earned income of such individual, if such individual's disability is sufficiently severe to result in a functional limitation requiring assistance in order for him to work, as may be necessary to pay the costs (to such individual) of attendant care services, medical devices, equipment, prostheses, and similar items and services (not including routine drugs or routine medical services unless such drugs or services are necessary for the control of the disabling condition) which are necessary (as determined by the Secretary in regulations) for that purpose, whether or not such assistance is also needed to enable him to carry out his normal daily functions, except that the amounts to be excluded shall be subject to such reasonable limits as the Secretary may prescribe.

71
See also 42 U.S.C. Sec. 1382c(a)(3)(D) (restating same).  In 1983, the Department of Health and Human Services promulgated 20 C.F.R. Sec. 416.976.  See 48 Fed.Reg. 21940 (1983).  These regulations established a five-part test for determining the deductibility of an IRWE:

72
We will deduct impairment-related work expenses if--

73
(1) You are otherwise disabled ...;

74
(2) The severity of your impairment(s) requires you to purchase (or rent) certain items and services in order to work;

75
(3) You pay the cost of the item or service....;

76
(4) You pay for the item or service in accordance with paragraph (d) of this section;  and

77
(5) Your payment is in cash (including checks and other forms of money).  Payment in kind is not deductible.

78
20 C.F.R. Sec. 416.976(b).  With respect to the deductibility of drugs as an IRWE, the regulations provide:

79
If you must use drugs ... to control your impairment(s), the payments you make for them may be deducted.  The drugs or services must be prescribed (or utilized) to reduce or eliminate the symptoms of your impairment(s) or to slow down its progression.

80
*   *   *   *   *   *

81
Examples of deductible drugs ... are anticonvulsant drugs to control epilepsy ...;  antidepressant medication for mental disorders;  medication used to allay the side effects of certain treatments;  ...  and immunosuppressive medications that kidney transplant patients regularly take to protect against graft rejection.

82
20 C.F.R. Secs. 416.976(c)(5)(i), (ii).  Consistent with the Act's objective, use of the drugs must be necessary to allow the person to perform work.  See Soc.Sec.R. 84-26 at 18 (1984) ("Routine drugs ... are 'needed' when they are required to control the disabling condition, thereby enabling the individual to function at work.").

83
Dotson argues that, due to the severity of his drug addiction, he needs the cocaine and heroin in order for him to steal and panhandle.  (Of course, he steals and panhandles so that he can purchase more cocaine and heroin, so that he can continue to steal and panhandle--and thus the cycle of addiction continues.)   Because he needs the narcotics in order to engage in SGA, Dotson continues, he believes that the cost of the cocaine and heroin should be deducted from his earnings as an IRWE.

84
Sadly, we have no reason to disbelieve Dotson's self-characterization.  Unfortunately for him, however, the regulations comprehend more than mere addiction to a substance before the cost of that substance will be considered an IRWE.  As the statute and regulations reveal, a number of obstacles lie in the path of Dotson's argument.  We content ourselves, however, to focus upon the requirement that in order to be an IRWE a drug must "reduce or eliminate" the symptoms of a claimant's impairment, or "slow down its progression."  20 C.F.R. Sec. 416.976(c)(5)(i).  In the face of Dotson's claim that his disability stems from drug abuse, he cannot hope to maintain the argument that his continued use of heroin and cocaine reduces or eliminates the symptoms of his impairment.  Rather, Dotson's use of drugs serves as the basis of his alleged disability.  And far from slowing Dotson's dependency upon narcotics, his continued use of heroin and cocaine only exacerbates his disability.  With these considerations in mind, we must reject Dotson's claim for an IRWE.

85
E. THE CONSTITUTIONAL CLAIMS.

86
Dotson lastly argues that using illegal activity to constitute SGA violates his rights to due process and equal protection of the laws under the United States Constitution, although he has encountered some difficulty in articulating the precise nature of his constitutional complaints.  It would seem that his due process argument--one which might be more properly construed as an administrative challenge to the regulations--reduces to the theory that the ALJ's decision in this case attempts to override Congress' intent to provide SSI benefits to substance abusers and, therefore, is void for want of a rational basis.  His equal protection claim, on the other hand, appears based on the assertion that, under the Secretary's position, rich drug addicts will be treated preferentially to the disadvantage of poor ones.  We briefly address each of his arguments.

87
1. Due Process.

88
To establish a due process violation, Dotson faces the well-settled and formidable burden of proving that the Secretary's regulations, as we have interpreted them, lack a rational basis.  See, e.g., Weinberger v. Salfi, 422 U.S. 749, 768, 95 S.Ct. 2457, 2468, 45 L.Ed.2d 522 (1975) ("the Due Process Clause can be thought to interpose a bar only if the statute [or, as here, a regulation] manifests a patently arbitrary classification, utterly lacking in rational justification [citation omitted]").  Moreover, that rational basis need not be expressed explicitly by Congress or the administrative agency;  "any state of facts reasonably may be conceived to justify it."  Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970) (citation omitted).

89
Initially, we note that interpreting the Secretary's regulations as allowing illegal activity to constitute SGA does not interfere with Congress' intent, assuming there is one, to provide disability benefits to substance abusers.12  Rather, such an interpretation prevents only those substance abusers who are engaging in SGA, whether legally or illegally employed, from receiving SSI benefits reserved for disabled persons who are also poor.  See Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2290, 96 L.Ed.2d 119 (1987) ("Title XVI of the Act provides for the payment of disability benefits to indigent persons...."  [Emphasis added.]  Thus, the Secretary's regulations coincide with the SSI program's underlying purpose.

90
Moving to the next level, Dotson's myopic view of Congress' intent in the statutory context serves to highlight the flaw in his constitutional argument.  Simply put, we cannot say that regulations which preclude the disbursement of federal disability benefits to persons who are engaging in substantial and gainful activity, regardless of the activity's legality, constitutes a "patently arbitrary classification" warranting judicial intervention.  To the contrary, working within a system where the limited supply of federal funds will never satisfy the deserving demand, we are hard pressed to think of a better dividing line than the one drawn by the Secretary.  Having said this much, we must reject Dotson's due process claim.

91
2. Equal Protection.

92
Dotson faces an equally difficult burden when arguing to this court that the Secretary's regulations violate the equal protection component of the Fifth Amendment.  Because a statute's or regulation's differential impact upon the poor versus the wealthy, by itself, does not subject that distinction to strict judicial scrutiny, see, e.g., Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 458, 108 S.Ct. 2481, 2487, 101 L.Ed.2d 399 (1988), Dotson must prove that the classification drawn by the Secretary's regulations fails to rationally further a legitimate interest, Zobel v. Williams, 457 U.S. 55, 60, 102 S.Ct. 2309, 2312, 72 L.Ed.2d 672 (1982).  Under such a standard, Dotson's constitutional claim again must fail.

93
Dotson argues that the Secretary's position, if implemented, will hurt only poor drug abusers because rich ones, who presumably will have paid into the Social Security system, will be eligible to receive OASDI benefits under Title II of the Act.  This argument misses the mark for the simple reason that OASDI claimants, just like SSI claimants, must navigate the same five-step administrative process, the first of which requires that the claimant not be engaging in SGA.  Compare 42 U.S.C. Sec. 423(d)(1)(A) and 20 C.F.R. Sec. 404.1520(a) (Title II) with 42 U.S.C. Sec. 1382c(a)(3)(A) and 20 C.F.R. Sec. 416.920 (a) (Title XVI).13  Even if Dotson could maintain such an argument, we would be inclined to reject it because the Secretary's classification seems rationally to further the legitimate interest of rewarding those persons with a prior attachment to the work force who have contributed to the Social Security system.

94
The judgment of the district court is AFFIRMED.

*
 Pursuant to Federal Rule of Appellate Procedure 43(c)(1), we have substituted Donna E. Shalala for her predecessor, Louis W. Sullivan, as Secretary of the Department of Health and Human Services

**
 The Honorable Albert J. Engel, Senior Circuit Judge for the United States Court of Appeals for the Sixth Circuit, is sitting by designation

1
 For other, more generalized, SSI eligibility requirements, see 20 C.F.R. Sec. 416.202

2
 The parties have devoted some attention to the issue of whether panhandling, or the income therefrom, can cause a person to become ineligible for SSI benefits.  We decline to reach this issue.  As noted above, the ALJ determined that, due to the poor area in which Dotson panhandles, the bulk of his income comes from illegal activities.  We believe the ALJ's finding to be supported by substantial evidence and, therefore, leave the panhandling issue to a court with the question properly before it

3
 See Bell v. Sullivan, 817 F.Supp. 719 (N.D.Ill.1993) (Marovich, J.);  Jones v. Sullivan, 804 F.Supp. 1045 (N.D.Ill.1992) (Holderman, J.);  Curtis v. Sullivan, 764 F.Supp. 119 (N.D.Ill.1991) (Bua, J.);  Moore v. Sullivan, 1992 WL 199257 (N.D.Ill. Aug. 4, 1992) (Reinhard, J.;   unpublished);  Love v. Sullivan, 1992 WL 86193 (N.D.Ill. Apr. 22, 1992) (Conlon, J.;   unpublished);  Dugan v. Bowen, 1989 WL 281911 (S.D.Ill. Nov. 8, 1989) (unpublished), rev'd on other grounds sub nom.  Dugan v. Sullivan, 957 F.2d 1384 (7th Cir.1992);  Hart v. Sullivan, 824 F.Supp. 903 (N.D.Cal.1992).  Cf. Hammonds v. Celebrezze, 260 F.Supp. 992 (N.D.Ala.1965) (claimant's illegal manufacture of whiskey not conclusive evidence of SGA absent evidence of earnings)

4
 For a reconstituted formulation of the above definition, see 20 C.F.R. Sec. 416.910, which provides:  "Substantial gainful activity means work that--(a) Involves doing significant and productive physical or mental duties;  and (b) Is done (or intended) for pay or profit."

5
 Accordingly, substantial but non-remunerative volunteer work would fall short of SGA because people normally do not volunteer their services for pay or profit.  See SOCIAL SECURITY LAW AND PRACTICE Sec. 37:4 at 8 (Timothy E. Travers et al. eds., 1987).  Evidence of such volunteer work, however, could be used to deny a claimant benefits at a later stage in the sequential evaluation process.  See 20 C.F.R. Sec. 416.971

6
 In contrast to the OASDI provisions of the Act, the SSI program is particularly concerned with a claimant's financial situation:
The basic purpose underlying the supplemental security income program is to assure a minimum level of income for people who are age 65 or over, or who are blind or disabled and who do not have sufficient income and resources to maintain a standard of living at the established Federal minimum income level.

20
 C.F.R. Sec. 416.110 (emphasis added);  see also id. at Sec. 416.1100 ("the amount of income you have is a major factor in deciding whether you are eligible for SSI benefits").  Thus, a claimant not engaging in SGA and otherwise eligible for the SSI program will be denied benefits if he or she has too much income or too many resources.  See 42 U.S.C. Sec. 1382(a);  generally 20 C.F.R. Subpts.  K, Sec. 416.1100 et seq.  (income) and L, Sec. 416.1201 et seq.  (resources)

7
 For example, acting as a lookout at a drug house might constitute a gainful yet insubstantial activity, whereas someone who chronically engages in acts of vandalism may be substantially, but not gainfully, occupied

8
 Indeed, were we to hold otherwise, the court would be creating the perverse incentive--although admittedly only at the margins--for both SSI claimants and recipients to engage in illegal activity because the income therefrom would be ignored

9
 Again, however, the resources and income analysis implicated here and discussed at note 6, supra, is different from the ALJ's responsibility to determine whether a claimant is engaging in SGA

10
 Dotson also argues that the ALJ erred by underestimating the amount of money he earned through panhandling.  As we discussed at note 2, supra, the ALJ's decision to discount Dotson's panhandling income--because of the poor area in which he begs--is supported by substantial evidence

11
 Moreover, this is not an instance where the claimant's testimony was of such dubious veracity that the ALJ should have discredited it.  Dotson's claim to spending $200 to $300 per day on heroin and cocaine, while on the high side, is certainly within the realm of possibility.  See, e.g., Hart v. Sullivan, 824 F.Supp. 903 (N.D.Cal.1992) (claimant "presently consumes seven or eight twenty-dollar bags of heroin daily ..., uses crack every night ..., and drinks approximately eight half-pints of hard liquor daily")

12
 We are inclined to agree with Dotson that Congress has envisioned the application of the Act to substance abusers.  See, e.g., 42 U.S.C. Sec. 1382(e)(3)(A) (requiring SSI recipients who are alcoholics or drug addicts to undergo treatment as a condition of receiving disability benefits);  42 U.S.C. Sec. 1383(a)(2)(A)(ii) (providing for payment of SSI benefits to alcoholics and drug addicts through representative payees)

13
 Dotson's argument would become relevant in two situations, the first of which is beyond the court's powers generally and the second of which is not implicated in this appeal.  The first scenario involves a wealthy addict who is able to satisfy his or her addiction without resort to the welfare system.  Such a person, of course, is better off than Dotson, but this disparity yields him no cause of action.  In the second scenario, a wealthy addict who is not engaging in SGA, but who has paid into the Social Security system, applies for and receives OASDI benefits.  This person, again undoubtedly better off than Dotson, presumably would be ineligible for SSI benefits due to an excess of resources and income.  See generally note 6, supra.   Importantly, however, Dotson is not in a position to make this argument because the ALJ below did not deny him benefits based on his income or resources, but rather based on the fact that Dotson was engaging in SGA


                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                             No. 06-1147

YONGDUAN CHEN,

                                                          Petitioner,

          versus

ALBERTO R. GONZALES, Attorney General,

                                                          Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals. (A97-624-169)

Submitted:   July 21, 2006                 Decided:   August 16, 2006

Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Benjamin B. Xue, LAW OFFICES OF BENJAMIN B. XUE, P.C., New York,
New York, for Petitioner.      Rod J. Rosenstein, United States
Attorney, Tarra DeShields-Minnis, Assistant United States Attorney,
Baltimore, Maryland, for Respondent.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Yongduan Chen, a native and citizen of the People’s

Republic of China, petitions for review of a decision of the Board

of Immigration Appeals (Board) affirming, without opinion, the

immigration      judge’s      denial    of    his    applications     for   asylum,

withholding of removal, and protection under the Convention Against

Torture. Because the Board affirmed under its streamlined process,

see   8   C.F.R.    §    1003.1(e)(4)      (2006),    the   immigration        judge’s

decision    is     the    final   agency     determination.       See    Camara     v.

Ashcroft, 378 F.3d 361, 366 (4th Cir. 2004).

            Chen challenges the immigration judge’s finding that his

testimony was not credible, and that he otherwise failed to meet

his burden of proof to qualify for asylum.                  Credibility findings

are reviewed for substantial evidence. A trier of fact who rejects

an    applicant’s        testimony   on    credibility      grounds     must    offer

specific, cogent reasons for doing so.                Figeroa v. INS, 886 F.2d

76, 78 (4th Cir. 1989).           “Examples of specific and cogent reasons

include     inconsistent       statements,        contradictory     evidence,     and

inherently improbable testimony . . . .”                Tewabe v. Gonzales, 446

F.3d 533, 538 (4th Cir. 2006) (internal quotations and citations

omitted).    If the immigration judge’s adverse credibility finding

is based on speculation and conjecture rather than specific and

cogent reasoning, it is not supported by substantial evidence. Id.

                                          - 2 -
          We   have   reviewed   the   evidence   of    record   and   the

immigration judge’s decision, and we find that the immigration

judge’s negative credibility determination is not supported by

substantial evidence.   The immigration judge primarily relied on a

single misstatement by Chen as to the date of his wife’s forced

abortion, which Chen quickly corrected and otherwise consistently

reported, to find Chen not a credible witness.         Reference to this

single, isolated misstep does not constitute specific and cogent

reasons supporting the finding. As the immigration judge based his

denial of all the requested relief on this credibility finding, we

must grant the petition for review and remand the case to the Board

for additional investigation or explanation.      See INS v. Ventura,

537 U.S. 12, 16 (2002) (holding that generally, court of appeals

should remand case to agency “for additional investigation or

explanation”); Gonzales v. Thomas, 126 S. Ct. 1613, 1614 (2006)

(reasserting Ventura “remand rule”).

          Accordingly, we grant the petition for review, vacate the

decision of the Board, and remand for further proceedings.              We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.

                                                  VACATED AND REMANDED

                                 - 3 -


581 F.Supp. 1160 (1984)
William F. PALMER
v.
James B. COONS, individually and in his official capacity as Lieutenant of the Middlebury Police Department; Michael B. Bolduc, individually and in his official capacity as Patrolman of the Middlebury Police Department; and Edward Cyr, individually and in his official capacity as Patrolman of the Middlebury Police Department.
Civ. A. No. 80-137.
United States District Court, D. Vermont.
March 5, 1984.
Michael R. Gadue, Burlington, Vt., for plaintiff.
Matthew I. Katz, Latham, Eastman, Schweyer & Tetzlaff, Burlington, Vt., for defendants.

OPINION AND ORDER
COFFRIN, Chief Judge.
The defendants in this § 1983 civil rights action have moved for an award of attorney fees pursuant to 42 U.S.C. § 1988. Defendants were the prevailing parties by virtue of this court's grant of their motion for summary judgment and the affirmance of that decision on appeal. The parties do not dispute that the applicable standard is whether plaintiff's claims were frivolous, unreasonable or without foundation, or whether plaintiff continued to litigate after they clearly became so. See Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980) (per curiam) (§ 1983 action where court applied standard adopted in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 *1161 (1978), a Title VII case, on rationale that § 1983 standard should be no less stringent). The parties predictably dispute the application of that standard.
The facts underlying plaintiff's action are summarized as follows. Two of the defendants, Middlebury police officers, were called in the early morning to plaintiff's dairy by a neighbor who suspected a burglary in progress. They arrived in separate cars, one marked and one unmarked. Plaintiff heard vehicles in the dairy driveway next to his residence and went outside to investigate, carrying a rifle. He first encountered a car with its headlights on, then saw two men with flashlights inside one of his vans. He then smashed the headlights of the car with its lights on, which was the unmarked cruiser. The two men were the police officers. It was disputed whether they identified themselves and told plaintiff not to do any more damage after plaintiff had put out one headlight but before he put out the second. It was also disputed whether plaintiff was unreasonably profane and abusive even after learning the officers' identity. In any event, the officers left without making an arrest or issuing a citation. They filed incident reports the following day. Lieutenant Coons, the third defendant, filed the reports with the county prosecutor. The prosecutor initiated a charge of unlawful mischief, notice of which was served on plaintiff by citation. It was eventually agreed that the charge would be nol prossed if plaintiff would pay for the headlights and apologize to the officers.
Plaintiff's § 1983 action consisted of four constitutional claims and two appended state claims for malicious prosecution and negligence. The constitutional allegations were that defendants had violated plaintiff's right to privacy, his freedom from unreasonable search and seizure, his freedom from false arrest and malicious prosecution, and his freedom from cruel and unusual punishment. The alleged damages were for defamation causing humiliation, mental distress, and loss of employment and earnings as well as an opportunity for public service.
This court found that any search was reasonable, in light of the exigent circumstances exception to the warrant requirement, since a felony in progress had been reported on the premises. We also found no unreasonable seizure occurred in that plaintiff was never arrested and was perhaps briefly detained but only after the officers had probable cause to arrest plaintiff for destroying the headlights in their presence. We also found that the charge filed against plaintiff involved no violation of any federal rights, in essence because he was never arrested, the citation was supported by probable cause, no federal privacy right could be properly invoked to protect plaintiff from the unwanted publicity, and because malicious prosecution is a state law claim absent a conjunctive constitutional deprivation. Finally, the court noted that plaintiff had not been punished in the sense of the Eighth Amendment's prohibition of cruel and unusual punishment because he had not been convicted of anything, and that his remaining claim of simple negligence carried no federal rights implications and therefore could not be the substance of a § 1983 claim.
We conclude that plaintiff's complaint was indeed unreasonable and groundless, and that an award of fees is appropriate. We do so with full awareness that the principal purpose behind congressional authorization of fee awards to prevailing parties in civil rights cases was to encourage "private attorneys general" to vindicate fundamental federal rights, and that fee liability may do the opposite. See Senate Rep. No. 94-1011, 94th Cong.2d Sess., reprinted in 1976 U.S.Code Cong. & Ad.News 5908, 5912 (legislative history to § 1988); see also Hughes, 449 U.S. at 14-15, 101 S.Ct. at 178-179; Turner v. Lynch, 534 F.Supp. 686, 689 (S.D.N.Y.1982) (prevailing plaintiff's should ordinarily recover fees but prevailing defendants must meet stringent standard of frivolousness, etc.). We are also aware that the novelty of some of plaintiff's arguments presented issues which might be characterized as being of *1162 first impression, a factor in favor of avoiding plaintiff's fee liability. See Christiansburg Garment Co., 434 U.S. at 422, 98 S.Ct. at 700.
It is abundantly clear, however, that the novelty of a case of "first impression" may derive from the fact that it is a totally groundless claim such that no reasonable person ever before considered it sufficient to bring to court, and that in such circumstances a plaintiff may be liable for the cost of defense. See e.g. Harbulak v. County of Suffolk, 654 F.2d 194 (2d Cir. 1981) (privacy claim based on police officers reaching into vehicle to leave citation on dashboard after driver refused to accept it by hand). Moreover, this was not a case in which plaintiff's claims may have seemed meritorious at the outset but later failed because of further development in the law or because of further exposure of facts not available at the outset. Christiansburg Garment Co., 434 U.S. at 422, 98 S.Ct. at 700. The facts here were relatively simple and clear, as was the law, from beginning to end.
The applicable law required somewhat lengthy explanation in this court's opinion on summary judgment, but that was largely because of the number and "chameleonic" nature of plaintiff's claims. The alleged web of constitutional violations disintegrated when we considered that little in the claims even brought constitutional analysis into play. There was no arrest, no significant detention, no search, no invasion of privacy, no punishment, and there was probable cause to arrest that was not exploited by the officers in that no arrest occurred. We also note in this regard that we need not stretch the bounds of reasonableness in this case as have courts faced with pro se complaints by prisoners and others not legally trained or counseled. Compare, e.g. Hughes 449 U.S. at 15, 101 S.Ct. at 178. Plaintiff was advised by counsel throughout the case.
In the final analysis, we need not go so far as to say this action was entirely frivolous in order to say that with and without the benefit of hindsight it was groundless and unreasonable. It may be that the police and prosecutor could have been more diplomatic in seeking restitution for plaintiff's acts, but the facts and law of this case never warranted the public and private costs of a federal civil rights action.
The amount of fees requested is approximately twelve thousand dollars, including approximately three thousand dollars spent in response to plaintiff's appeal to the circuit. The court finds that two thousand five hundred dollars is an appropriate fee award in this case, including the costs of appeal.[1] Plaintiff has tried to color the appellate expense as due to defendant's refusal to settle for a lesser sum. Given the lack of merit to the case, however, and the obvious principles involved where defendants were public officials as well as the fact that the right to appeal alone should not be used to give appellants leverage for an otherwise unjustified settlement, we find those costs attributable to the plaintiff.
NOTES
[1]  The "most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, ___ U.S. ___, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). This is described by the Second Circuit Court of Appeals as fixing the "lodestar" amount. See NYARC v. Carey, 711 F.2d 1136, 1140 (2d Cir.1983). The conclusory affidavit filed by defendant's counsel in support of the motion for attorney fees does not distinguish between counsel's professional fees and expenses nor does it itemize the number of hours spent on the matter at the stated hourly rate of $60. Nevertheless, given the nature and history of the action, the issues presented, the quality of representation by counsel and the ultimate result the court is satisfied that the total charges of $12,004.53 set forth in the affidavit reflects a reasonable lodestar figure and that in the circumstances of this case additional information to enable the court to fix the amount of attorney fees is unnecessary. This is particularly so since at the hearing defendants' counsel advised they were not seeking the entire amount of their charges but would be content with a lesser award "anywhere between a tenth and a half" of the amount billed to and paid by their clients. It appears then that the defendants seek an award of attorney fees more symbolic than compensatory and the court's award in this context is eminently reasonable.


Order                                                                                Michigan Supreme Court
                                                                                Lansing, Michigan

  May 27, 2008                                                                                Clifford W. Taylor,
                                                                                Chief Justice

  133930                                                                                Michael F. Cavanagh
                                                                                Elizabeth A. Weaver
                                                                                Marilyn Kelly
                                                                                Maura D. Corrigan
  DOUGLAS SHANES, Personal                                                                             Robert P. Young, Jr.
  Representative of the Estate of                                                                      Stephen J. Markman,
                                                                                Justices
  Marcella Shanes,

               Plaintiff-Appellee,

  v        	                                                        SC: 133930
                                                                    COA: 264651
                                                                    Jackson CC: 02-000044-NH
  SHAHZAD A. SHAIKH, M.D.

  and W. A. FOOTE MEMORIAL

  HOSPITAL,

              Defendants,
  and
  DR. JAVAID BASHIR,

            Defendant-Appellant,

  and
  DOCTORS HOSPITAL OF JACKSON,

  DR. LOWELL FISHER and NAVEED

  SIDDIQI, M.D.,

             Defendants-Appellees.

  _________________________________________/

         By order of November 29, 2007, the application for leave to appeal the February
  20, 2007 judgment of the Court of Appeals was held in abeyance pending the decision in
  Braverman v Garden City Hospital (Docket Nos. 134445-6). On order of the Court, the
  case having been decided on April 9, 2008, 480 Mich 1159 (2008), the application is
  again considered, and it is DENIED, because we are not persuaded that the questions
  presented should be reviewed by this Court.

                           I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                     foregoing is a true and complete copy of the order entered at the direction of the Court.
                           May 27, 2008                        _________________________________________
           l0519                                                               Clerk