FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 25, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
KATRINA M. HAYS,
Plaintiff - Appellant,
v. No. 16-1341
(D.C. No. 1:13-CV-01115-LTB)
NANCY A. BERRYHILL, Acting (D. Colo.)
Commissioner of Social Security,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, BALDOCK, and BRISCOE, Circuit Judges.
_________________________________
Katrina Hays appeals the district court’s order denying her motion for attorney
fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(A). In a
prior appeal this court remanded Ms. Hays’s claims for Social Security disability
benefits and supplemental security income benefits. Hays v. Colvin, 630 F. App’x
749 (10th Cir. 2015). In this case, the district court determined that Ms. Hays was
not entitled to attorney fees because the Commissioner’s position was “substantially
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
justified,” 28 U.S.C. § 2142(d)(1)(A). We exercise jurisdiction under 28 U.S.C.
§ 1291 and affirm.
I. Background
Ms. Hays applied for disability benefits in November 2006. Eventually, her
case was heard by an administrative law judge (ALJ). Ms. Hays submitted a report
by Dipesh Amin, M.D., an examining physician, that primarily discussed her
complaints of right hand and wrist pain. The report also addressed Ms. Hays’s knee
problems, stating in the narrative section that her ability to stand was limited to
approximately four hours a day with appropriate breaks. The report included a
checklist on which Dr. Amin checked one box indicating Ms. Hays could stand for
four hours “at one time without interruption,” and another indicating that she could
walk for four hours “at one time without interruption.” See Hays, 630 F. App’x
at 752 (internal quotation marks omitted).
At the administrative hearing, the ALJ posed a hypothetical question to a
vocational expert (VE) about an individual who could stand or walk with normal
breaks for a total of six hours in an eight-hour workday. The VE responded that such
a person could perform light work and identified several jobs the person could
perform. This standing/walking limitation comports with the general requirements
for light work. See SSR 83-10, 1983 WL 31251, at *6. The ALJ concluded that
Ms. Hays had the residual functional capacity (RFC) to perform light work with no
additional standing/walking limitations. Accordingly, the ALJ found Ms. Hays not
disabled.
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On appeal to this court, we noted that the ALJ referred briefly to Dr. Amin’s
assessment without assigning an explicit weight to it and discussed the assessment
only as it related to Ms. Hays’s right-extremity impairment. We held that the ALJ
failed to adequately address Dr. Amin’s standing and walking restrictions. We
concluded that Dr. Amin’s report pertaining to Ms. Hays’s ability to stand and walk
was inconsistent with both the ALJ’s RFC determination and the hypothetical posed
to the VE. Therefore, we remanded for clarification of the standing and walking
restrictions in Dr. Amin’s report. We, however, rejected Ms. Hays’s other appellate
arguments asserting that the ALJ improperly evaluated other medical evidence.
Ms. Hays then filed a motion for EAJA attorney fees. The district court
acknowledged this court’s order and judgment but denied the motion, holding, (1) a
reasonable person could interpret Dr. Amin’s opinion that Ms. Hays could stand four
hours and walk four hours as consistent with the ALJ’s finding that she could stand
and walk a combined six hours, so the ALJ was not required to expressly address
Dr. Amin’s opinion; (2) the remand order did not imply a lack of substantial
justification, but rather the remand was “for ‘clarification’ regarding the weight given
to Dr. Amin’s opinions with respect to standing and walking,” Aplt. App. Vol. 2, at
320; (3) this court had rejected most of Ms. Hays’s appellate arguments; and (4) the
remand was for further administrative proceedings, rather than for an outright award
of benefits. Ms. Hays now appeals the district court’s ruling, asserting error in all of
the court’s grounds for denying her motion for attorney fees.
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II. Standards of Review
To be entitled to recover attorney fees from the government under the EAJA, a
plaintiff must establish (1) that she is a prevailing party, (2) the Commissioner’s
position was without substantial justification, and (3) there are no special
circumstances that warrant denying relief. 28 U.S.C. § 2142(d)(1)(A); Hackett v.
Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007). The only dispute is whether the
Commissioner’s decision to deny benefits and the Commissioner’s litigating position
were substantially justified. See § 2412(d)(2)(D) (providing that the relevant inquiry
pertains to the government’s position before the agency, as well as in the civil
litigation).
“[T]he Commissioner had the burden of proof to show that her position was
substantially justified. The test for substantial justification in this circuit is one of
reasonableness in law and fact.” Hackett, 475 F.3d at 1172 (citation and internal
quotation marks omitted). In other words, the Commissioner’s position must be
“justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood,
487 U.S. 552, 565 (1988).
“We review the district court’s determination that the Commissioner’s position
was substantially justified for an abuse of discretion. An abuse of discretion occurs
when the district court bases its ruling on an erroneous conclusion of law or relies on
clearly erroneous fact findings.” Hackett, 475 F.3d at 1172 (citation and internal
quotation marks omitted). It is the plaintiff’s burden to show that the district court’s
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judgment was an abuse of discretion. Madron v. Astrue, 646 F.3d 1255, 1257
(10th Cir. 2011).
III. Analysis
Ms. Hays first argues that the Commissioner’s litigating position in the merits
appeal was not substantially justified in law because it was impermissible post hoc
rationale for the ALJ’s decision. See Grogan v. Barnhart, 399 F.3d 1257, 1263
(10th Cir. 2005) (rejecting “post-hoc rationalizations to explain the Commissioner’s
treatment of evidence when that treatment is not apparent from the Commissioner’s
decision itself”). The Commissioner argued that Dr. Amin’s opinion was generally
consistent with the ALJ’s RFC finding and thus any error was harmless. See
Keyes-Zachary v. Astrue, 695 F.3d 1156, 1163 (10th Cir. 2012) (holding alleged error
was harmless because the ALJ’s RFC determination was “generally consistent” with
the physician’s findings); see also Mays v. Colvin, 739 F.3d 569, 578-79 (10th Cir.
2014) (“[A]n ALJ’s failure to weigh a medical opinion involves harmless error if
there is no inconsistency between the opinion and the ALJ’s assessment of [RFC].”).
The Commissioner characterized Dr. Amin’s opinion as saying Ms. Hays could walk
for four hours and stand for four hours a day, but “did not limit [her] to stand or walk
for four hours,” Aplt. App. Vol. 1, at 74. Thus, she asserted, Dr. Amin’s opinion was
generally consistent with the ALJ’s finding and a remand was not required for an
express ALJ analysis.
We reject Ms. Hays’s argument that the Commissioner provided only post hoc
rationale. This is not a case in which the Commissioner supplied new reasons for
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supporting the ALJ’s RFC finding. Cf. Haga v. Astrue, 482 F.3d 1205, 1207-08
(10th Cir. 2007) (rejecting as post hoc rationale the Commissioner’s reasons that
would support the ALJ’s finding but that were “not apparent from the ALJ’s decision
itself”); Grogan, 399 F.3d at 1263 (holding where ALJ omitted discussion of
evidence, district court may not provide an explanation for the omission). Rather, the
Commissioner argued that the missing findings were not only consistent with the
other medical evidence, but were apparent from the ALJ’s decision. To the extent
Ms. Hays suggests the fact that her case was remanded for further proceedings
compels the conclusion that the Commissioner’s position was not substantially
justified, we reject the suggestion. “The government’s position can be substantially
justified, we have repeatedly held, even though it is not correct.” Madron, 646 F.3d
at 1257 (brackets and internal quotation marks omitted). In addition, the merits panel
did not reverse and remand on the basis of post hoc justification.
Ms. Hays also argues the district court abused its discretion in holding that the
Commissioner’s position was justified in fact. The district court found: “a
reasonable person could believe that Dr. Amin’s opinion that Ms. Hays could stand
four hours and walk four hours was consistent with the ALJ’s determination that she
could stand and walk a combined six hours.” Aplt. App. Vol. 2, at 319. Ms. Hays
contests this finding because, as the merits panel held, such an interpretation did not
resolve the inconsistency with the hypothetical posed to the VE, which allowed up to
six hours of either standing or walking, without limiting either activity to four hours.
She points out that this interpretation was inconsistent with the ALJ’s RFC findings
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and was thus discredited by the merits panel. But Ms. Hays’s argument conflates the
merits review—applying a substantial evidence standard—and the substantially
justified inquiry—asking whether the Commissioner’s “litigating position was
reasonable even if wrong,” Madron, 646 F.3d at 1257. Again, an unsuccessful
litigating position does not necessarily fail the test of substantially justified. See id.
Finally, Ms. Hays asserts that the district court abused its discretion by
considering that the merits panel rejected four of her five appellate arguments, did
not imply a lack of substantial justification, and remanded for further proceedings
instead of awarding benefits. While we agree that none of these factors directs a
denial of EAJA attorney fees, the court was within its discretion to consider them.
Ms. Hays relies on Hackett to argue that the district court improperly
considered the number of winning arguments the Commissioner raised in the merits
appeal. See Hackett, 475 F.3d at 1173 n.1 (rejecting Commissioner’s argument that
she had prevailed on five of the six merits issues because the winning issues were
“completely unrelated” to the issue warranting remand). But Hackett did not
preclude considering the parties’ success on their merits arguments. Indeed, Hackett
recognized that courts must treat the case as “an inclusive whole, rather than as
atomized line-items.” Id. (internal quotation marks omitted).
Moreover, the district court did not abuse its discretion by considering that the
merits panel remanded for clarification of Dr. Amin’s opinion, thereby not indicating
a lack of substantial justification. As the court recognized, “a ‘fully justified position
may be poorly explained, and remand may be the most appropriate vehicle for
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elucidating that position.’” Aplt. App. Vol. 2, at 320 (quoting DeLong v. Comm’r of
Soc. Sec. Admin., 748 F.3d 723, 727 (6th Cir. 2014)); see DeLong, 748 F.3d at 726
(in upholding denial of EAJA attorney fees, appellate court afforded considerable
weight to the district court’s observation that even though a remand was warranted,
the record did not strongly establish claimant’s entitlement to benefits).
IV. Conclusion
We conclude that the district court did not abuse its discretion in denying
Ms. Hays’s EAJA motion for attorney fees. The judgment is affirmed.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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