F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JAN 11 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
ELGIN L. HARTTER,
Plaintiff-Appellant,
v. No. 99-3095 (D.C. No. 95-4184-RDR) KENNETH S. APFEL, (D. Kan.) COMMISSIONER, SOCIAL (36 F. Supp. 2d 1303) SECURITY ADMINISTRATION,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before EBEL , LUCERO , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant 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
ordered 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. This appeal is taken from the district court denial of plaintiff’s renewed
application for attorney’s fees under the Equal Access to Justice Act (EAJA),
28 U.S.C. § 2412.
Plaintiff applied for disability benefits in November of 1993, alleging
disability from Post-Traumatic Stress Disorder (PTSD) as of January 1993.
Following a hearing, the administrative law judge (ALJ) determined plaintiff was
not disabled. This decision was upheld by the Appeals Council and became the
final decision of the Commissioner. Plaintiff then filed his complaint in district
court.
In addition to his complaint, plaintiff filed new evidence of disability. On
review of this additional evidence, the government filed a motion to remand the
matter and secured the agreement of the Appeals Council to remand the matter to
the ALJ for further consideration. See Appellant’s App. Vol. I at 38-40. Plaintiff
concurred in the motion, but preserved his claim that he was entitled to an
immediate award of benefits. See id. at 42-43. The district court granted the
government’s motion and entered judgment remanding the matter to the
Commissioner pursuant to 42 U.S.C. § 405(g), sentence four. See id. at 45.
-2- Plaintiff then filed his first application for fees under both the Social
Security Act, 42 U.S.C. § 406 (b)(1), and the EAJA. 1 The district court held that
the application under § 406(b)(1) was premature because no final decision had
been issued on plaintiff’s claim. See Hartter v. Chater , 963 F. Supp. 956, 958 (D.
Kan. 1997). The court denied EAJA fees upon determining that the government’s
position was substantially justified. See id. at 958-59. Specifically, the court
noted that
[T]he new evidence filed by the plaintiff tipped the scales and required reevaluation of the Commissioner’s findings. Plaintiff’s counsel recognized the significance of the new evidence in the initial brief and in the motion to supplement the record. Counsel for the Commissioner also recognized the importance of the new evidence and immediately sought remand.
See id. at 959.
On appeal, this court determined that because the district court had not
affirmed, modified or reversed the Commissioner’s decision but merely remanded
the action to the Appeals Council, plaintiff “was not a prevailing party, [and] the
district court did not have subject matter jurisdiction to consider his EAJA fee
application.” Hartter v. Apfel , No. 97-3115, 1998 WL 208871 at **5 (10th Cir.
1 28 U.S.C. § 2412(d)(1)(A) provides that “[e]xcept as otherwise specifically provided for by statute, a court shall award to a prevailing party . . . fees . . . unless the court finds that the position of the United States was substantially justified . . . .”
-3- April 29, 1998) (unpublished order and judgment). We therefore vacated the
district court’s order denying the fee application. See id.
Meanwhile, following the district court’s remand, the ALJ had conducted a
supplemental hearing. On consideration of the evidence of record, including
evidence not available at the time of the first hearing, the ALJ determined that
plaintiff was disabled. Plaintiff was subsequently awarded benefits and back
benefits to his initial disability onset date. See Appellant’s App. Vol. I at 63-67.
Plaintiff then filed a renewed application for fees. The district court
entered judgment against the Commissioner in the amount of $69,116.00, see
Hartter v. Apfel , 36 F. Supp. 2d 1303, 1306 (D. Kan. 1999), and proceeded to
consider the fee application under both the Social Security Act and the EAJA.
See id. at 1306-08. Fees were awarded pursuant to § 406(b)(1) and are not at
issue here.
The district court determined that nothing had occurred since its earlier
denial of EAJA fees to change the court’s earlier evaluation, Hartter v. Apfel , 36
F. Supp. 2d at 1306-07, noting that the favorable decision awarding benefits was
based on some fifty-five exhibits whereas the initial decision had been based on
only twenty-nine. See id. at 1307. The court remained persuaded “that the
Commissioner’s position in this case, both legally and factually, was reasonable.”
Id.
-4- The issue before us in this appeal is whether the government’s position was
substantially justified. The standard that informs our review of the matter is
whether the district court abused its discretion in making that determination. See
Gilbert v. Shalala , 45 F.3d 1391, 1394 (10th Cir. 1995). The test for substantial
justification is one of reasonableness in law and fact. See id.
Substantially justified means “‘justified in substance or in the main--that is
justified to a degree that could satisfy a reasonable person.’” Hadden v. Bowen ,
851 F.2d 1266, 1267 (10th Cir. 1998) (quoting Pierce v. Underwood , 487 U.S.
552, 565 (1988)). The government bears the burden of establishing that its
position was substantially justified. See id. A position, even though not correct,
can be substantially justified “if a reasonable person could think it correct, that is,
if it has a reasonable basis in law and fact.” Pierce , 487 U.S. at 566 n.2. Finally,
lack of substantial evidence in support of the merits “does not necessarily mean
that the government’s position was not substantially justified.” Hadden , 851 F.2d
at 1269. Although success or failure at each level may be evidence of whether the
government’s position was substantially justified, that success or failure alone
does not determine the issue. See id. at 1267.
Plaintiff’s primary argument underlying his claim that the government’s
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JAN 11 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
ELGIN L. HARTTER,
Plaintiff-Appellant,
v. No. 99-3095 (D.C. No. 95-4184-RDR) KENNETH S. APFEL, (D. Kan.) COMMISSIONER, SOCIAL (36 F. Supp. 2d 1303) SECURITY ADMINISTRATION,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before EBEL , LUCERO , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant 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
ordered 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. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. This appeal is taken from the district court denial of plaintiff’s renewed
application for attorney’s fees under the Equal Access to Justice Act (EAJA),
28 U.S.C. § 2412.
Plaintiff applied for disability benefits in November of 1993, alleging
disability from Post-Traumatic Stress Disorder (PTSD) as of January 1993.
Following a hearing, the administrative law judge (ALJ) determined plaintiff was
not disabled. This decision was upheld by the Appeals Council and became the
final decision of the Commissioner. Plaintiff then filed his complaint in district
court.
In addition to his complaint, plaintiff filed new evidence of disability. On
review of this additional evidence, the government filed a motion to remand the
matter and secured the agreement of the Appeals Council to remand the matter to
the ALJ for further consideration. See Appellant’s App. Vol. I at 38-40. Plaintiff
concurred in the motion, but preserved his claim that he was entitled to an
immediate award of benefits. See id. at 42-43. The district court granted the
government’s motion and entered judgment remanding the matter to the
Commissioner pursuant to 42 U.S.C. § 405(g), sentence four. See id. at 45.
-2- Plaintiff then filed his first application for fees under both the Social
Security Act, 42 U.S.C. § 406 (b)(1), and the EAJA. 1 The district court held that
the application under § 406(b)(1) was premature because no final decision had
been issued on plaintiff’s claim. See Hartter v. Chater , 963 F. Supp. 956, 958 (D.
Kan. 1997). The court denied EAJA fees upon determining that the government’s
position was substantially justified. See id. at 958-59. Specifically, the court
noted that
[T]he new evidence filed by the plaintiff tipped the scales and required reevaluation of the Commissioner’s findings. Plaintiff’s counsel recognized the significance of the new evidence in the initial brief and in the motion to supplement the record. Counsel for the Commissioner also recognized the importance of the new evidence and immediately sought remand.
See id. at 959.
On appeal, this court determined that because the district court had not
affirmed, modified or reversed the Commissioner’s decision but merely remanded
the action to the Appeals Council, plaintiff “was not a prevailing party, [and] the
district court did not have subject matter jurisdiction to consider his EAJA fee
application.” Hartter v. Apfel , No. 97-3115, 1998 WL 208871 at **5 (10th Cir.
1 28 U.S.C. § 2412(d)(1)(A) provides that “[e]xcept as otherwise specifically provided for by statute, a court shall award to a prevailing party . . . fees . . . unless the court finds that the position of the United States was substantially justified . . . .”
-3- April 29, 1998) (unpublished order and judgment). We therefore vacated the
district court’s order denying the fee application. See id.
Meanwhile, following the district court’s remand, the ALJ had conducted a
supplemental hearing. On consideration of the evidence of record, including
evidence not available at the time of the first hearing, the ALJ determined that
plaintiff was disabled. Plaintiff was subsequently awarded benefits and back
benefits to his initial disability onset date. See Appellant’s App. Vol. I at 63-67.
Plaintiff then filed a renewed application for fees. The district court
entered judgment against the Commissioner in the amount of $69,116.00, see
Hartter v. Apfel , 36 F. Supp. 2d 1303, 1306 (D. Kan. 1999), and proceeded to
consider the fee application under both the Social Security Act and the EAJA.
See id. at 1306-08. Fees were awarded pursuant to § 406(b)(1) and are not at
issue here.
The district court determined that nothing had occurred since its earlier
denial of EAJA fees to change the court’s earlier evaluation, Hartter v. Apfel , 36
F. Supp. 2d at 1306-07, noting that the favorable decision awarding benefits was
based on some fifty-five exhibits whereas the initial decision had been based on
only twenty-nine. See id. at 1307. The court remained persuaded “that the
Commissioner’s position in this case, both legally and factually, was reasonable.”
Id.
-4- The issue before us in this appeal is whether the government’s position was
substantially justified. The standard that informs our review of the matter is
whether the district court abused its discretion in making that determination. See
Gilbert v. Shalala , 45 F.3d 1391, 1394 (10th Cir. 1995). The test for substantial
justification is one of reasonableness in law and fact. See id.
Substantially justified means “‘justified in substance or in the main--that is
justified to a degree that could satisfy a reasonable person.’” Hadden v. Bowen ,
851 F.2d 1266, 1267 (10th Cir. 1998) (quoting Pierce v. Underwood , 487 U.S.
552, 565 (1988)). The government bears the burden of establishing that its
position was substantially justified. See id. A position, even though not correct,
can be substantially justified “if a reasonable person could think it correct, that is,
if it has a reasonable basis in law and fact.” Pierce , 487 U.S. at 566 n.2. Finally,
lack of substantial evidence in support of the merits “does not necessarily mean
that the government’s position was not substantially justified.” Hadden , 851 F.2d
at 1269. Although success or failure at each level may be evidence of whether the
government’s position was substantially justified, that success or failure alone
does not determine the issue. See id. at 1267.
Plaintiff’s primary argument underlying his claim that the government’s
position was not substantially justified is that in the initial denial of benefits, the
ALJ ignored the treating physician rule. That rule requires the ALJ to give
-5- controlling weight to the treating doctor’s opinion about the nature and severity of
a claimant’s impairments if the opinion is both well supported by clinical and
diagnostic techniques and not inconsistent with other substantial evidence in the
record. See Bean v. Chater , 77 F.3d 1210, 1214 (10th Cir. 1995).
In his first opinion denying benefits, the ALJ had found that the opinions of
the treating Veteran’s administration (VA) physicians were inconsistent both with
the VA’s own disability assessment of 50% based on plaintiff’s PTSD and with
the evaluation of the government’s consultant. See Appellant’s App. Vol. I at
25-27. The ALJ also found the VA physicians’ opinions unpersuasive given
plaintiff’s ability to work for approximately twenty-three years without suffering
the effects of his Vietnam experience with such severity as to prohibit work
activity, as well as inconclusive results of a Minnesota Mulitphasic Personality
Inventory assessment. See id. at 25. 2 Additional evidence submitted to the
Appeals Council did not provide a basis for changing the ALJ’s decision. 3
2 This assessment actually listed plaintiff’s responses as resulting in an invalid profile. See Appellant’s App. Vol. II at 304. 3 Included in this additional evidence was a special outpatient report filed by Dr. Bradshaw, another VA physician. Although Dr. Bradshaw lists plaintiff has having PTSD, this report is dated after the ALJ’s decision. Moreover, although plaintiff characterizes Dr. Bradshaw as a “treating physician,” see Appellant’s Br. at 15-16, this report appears to be the only contact Dr. Bradshaw had with plaintiff.
-6- By the time of the second decision, there was considerably more--and more
recent--medical evidence in support of awarding benefits; indeed, the decision
awarding benefits is based primarily on evidence produced after the initial
decision, e.g., reports from additional treating and examining physicians and a
new disability rating of 100% by the Veterans’ Administration. Moreover, the
Commissioner affirmatively sought the remand in view of this new evidence not
available for the ALJ’s initial consideration.
As stated earlier, the district court determined that plaintiff’s new evidence
“tipped the scales and required reevaluation of the Commissioner’s findings.”
Hartter v. Chater , 963 F. Supp. at 959. The court also noted that although it was
not suggesting the Commissioner’s initial decision denying benefits was
supported by substantial evidence, the government’s position taken prior to the
motion for remand and as a basis for the remand was substantially justified.
Under the circumstances, we conclude that the district court did not abuse its
discretion in denying EAJA fees.
-7- The judgment of the United States District Court for the District of Kansas
is AFFIRMED.
Entered for the Court
David M. Ebel Circuit Judge
-8-