The Honor able Edmund A. Sar g us, J r., United States District Judge f or the Southern * District of Ohio, sitting by desig nation. 1 NO T R EC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION F ile Nam e: 07a0290n.06 F iled: April 25, 2007 No. 06-5531 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT
M AD RO NO BLE , P laintif f-App ellant,
v. JO A NN E B. BA RN HA RT , COMMISSIONER OF SOCIAL SECURITY Defendan t-Appellee. ) ) ) ) ) ) ) ) ) ) ) ON AP P EA L F RO M THE UN ITED STA TES DI STR IC T CO UR T F OR THE EA S TE RN D IS TR IC T O F K EN TU CKY

Before: M OORE, GIBBONS, Circuit Jud ges, and S ARG US, DistrictJudge. * JULIA SMITH GIBBONS , Circuit Judge
. Plaintiff-appe llant Ma dro Noble appea ls a n order of the district c ourt denying his motion for attorney ’s fe es pursua

nt to the Equal Acc ess to J ustice Ac t, 28 U.S.C. § 2412(d) (“EA J A”). The district court found that the Comm issioner’s position was substantially justified and there fore a g rant of attorney ’s fees was unwar rante d. We ag ree and accor dingly aff irm the j udg ment of the district court. I.Sentence six of 42 U.S.C. § 405(g ) provides, in pe rtinent part, that “ [t ]he court may , on 1 motion of the Commi ssioner of Social Sec urity made f or g ood cause shown befor e the Commi ssioner files the Commissioner’s answe r, re mand the ca se to the Commissi oner of Social Security for f urther a ction by

the Commiss ioner of Socia l Security . . . .” 2 Noble filed a

pplications for a

period of disa

bility , disa b ility

insurance , and supplementa l
secur ity income on January

26, 2001. Noble alleg ed a dis ability beg inning in August 1997 and based his cla im on anx iety , nervousne ss, depre ssion, periphera l neuropathy , and ca rpal tunnel sy ndrome. The Social Security Administration ( “SSA”) denied Noble’s application in A pril 2001. An Administrative L aw Judge (“A L J ”) subse quently found that Noble w as not disabled and de nied his benefits application in November 2002. Noble appea led pursuant to 42 U.S.C. § 405(g) to the district court seeking revie w of that denial. During the cour se of his appe al, Noble f iled a subseque nt
a pp lic a tio n, in N ov e mbe r 2 00 3, a nd the SSA a pp ro ve d h is a

pp lic a tio n a

nd g ra nte d d isa bil ity be ne fi ts commencingon November 8, 2002. On a pp e a l, No ble su

bmi tte d a dd iti on a l e vid e nc e to the dis tr ic t c ourt , inc lud ing the fa vo ra ble November

2003 decision. The district c ourt ref err ed the a cti o n t o a magistrate judge and the mag istrate judge deter

mined that the ac tion should be remande d for pr ocee dings to de termine whether the Commiss ioner re lied on “much the sa me evidenc e [in November 2003] that had bee n g ener ated e arlier ” in awa

rding benef

its pursuant to the s ubsequent a pplication. The Commissioner did not objec t to r emanding the ca se, and the district court ultimately rema nded pursua

nt to sentence six of 42 U.S.C. § 405(g ), which a llows the court to remand for c onsideration of ne wly discovere d evidenc e. The Com missioner was inst ructe d to consider the newly submitt ed evide nce on r emand 1 and other wise re consider the AL J ’s dec ision.3

On re mand i n Dec ember 2005, the AL J held a new hearing and ult imately found Noble ha d be e n d isa ble d s inc e Janu a ry

16 , 2 00 1. No ble the n f

ile d a m ot io n to su bmit th e AL J’s p a rt ia lly favor able de cision to the district c ourt and a motion for EAJA fees under 28 U.S.C. § 2412(d). The district court gra

nted the motion to submi t the favor able de cision but denied Noble’ s motion for attorney ’s fe es. The c ourt found that the pa rtially favor able judg ment of Dec ember 2005 was ba sed
on new e vidence that was unavailable when Noble’s claim was initially denied a nd that the fa ct that
new e vidence y ielded a f avora ble re sult for Noble did not imply that the g overnme nt’s initial position, which was consistent with information available at the time, was not substantially justified. The district court acc ording ly found the g overnme nt’s position substantially justified and there fore denied Noble ’s motion for attorne y ’s fe es. Noble f iled a timely

notice of a

ppeal. II. We revie w an awa

rd of attorney fee s under the EAJA for an abuse of discretion. Jankov ich v. Bowen , 8 68 F .2 d 8 67 , 8 69 (6 th C ir . 1 98 9) . A c ourt “ a bu se s its dis c re tio n wh e n it re lie s o n c le a rl y
err oneous finding s of fa ct, or whe n it improperly applies the lawor uses an er ro n eo u s leg al standard.” Ph e lan v . B e ll , 8 F.3d 369, 373 ( 6th Cir. 1993)
. Under this standard, the district cour t’s fac tual finding s are revie wed for c lear err or, while its leg al conc lusions are re viewed de novo. P erke t
v . S e c ’y of H e alt h & Hu ma n S e rv s. , 905 F.2d 129, 132 ( 6th Cir. 1990).

I I I
. Noble see ks reimburse ment of his pay ment for leg al work pe rfor med at the f

eder al district court leve l and subsequent leg al work perf ormed befor e the Commiss ioner a fter the district court’s July 20 04 re mand
. Th e EA JA pr ov ide s th a t a c ourt sh a ll a wa rd fe e s a nd oth e r e xpe ns e s if

(1 ) N ob le4

is a “pre vailing pa

rty ”; (2) the position of the U nited States was not “substantially justified”; and (3) the re a re no sp e c ia l cir c ums tanc e s tha t mak e a n aw a rd un jus t. 28 U. S.C. § 241 2( d) (1 )( A) . T he on ly issue in this appeal is whether t he g overnme nt’s position was substantially justified; if the g ov e rn me nt’ s or ig ina l lit ig a tio n p os iti on wa s su bs tanti a lly

jus tif ie d, No ble is n ot e nti tle d to be ne fi ts under the EAJA. Marshall v. Comm’r of Soc. Se c. , 444 F.3d 837, 842 ( 6th Cir. 2006). Th e g ov e rn me nt’ s po sit ion wa s su bs tanti a lly jus tif

ie d if it wa s “

jus tif ie d in su bs tanc e or

in the main–that is, justified to a deg ree that could satisfy a re asonable person.” Pierce v. Unde rwood , 48 7 U .S. 55 2, 56 5 ( 19 88 ) (i nte rn a l que sti on mark s omitt e d)
. Th e Sup re me Court ha s equ a te d th is standard w ith a rea sonable ba sis both in l aw a nd fac t, and the position of the g overnme nt will be deeme d to be subst antially justified if there is a g enuine dispute, or if

rea sonable pe ople could diffe r as t o the appr opriatene ss of the conte sted ac tion. Id. The g overnme nt’s position “can be justified even thoug h it i s n o t corr ect . . ., a nd it can be substantially (i.e., for the most part) justified if a
rea sonable person could t hink it corre ct.” Id. at 566 n.2. As this c ourt has noted, “ [t ]he fact that we f[i nd ] that th e Com iss ion e r’ s posi tio n wa s unsu pp or te d by su bs tanti a l e vid e nc e do e s n ot f or e c los e the possibilit y

that the position was substantially justified. I ndeed, Cong ress did not want the ‘substantially

justified’ standard to be read to raise a presumption that the Government position was not substantially justified simply beca use i t lost the case . . . .” Ho war d v . B ar nh ar t , 376 F.3d 551, 554 (6th Cir. 2004) (interna l citat i o n s an d quotation marks omitted). When evaluating the C o m m i ssioner’s position, we conside r the AL J ’s dec ision as part of the Commissioner’s pre

lit ig a tio n c on du c t. See P eck v. Comm’r of Soc . Sec. , 165 F. App’ x 443, 446 (6th Cir. 2006). We find that t h er e i s am p l e ev i d ence demonstrating that the Commiss ioner’s orig inal5

litigation position wa s substantially justified by the fac ts of Noble’s c ase. See P ierce , 487 U.S. at 565 (noting that there must be a rea sonable connec tion be tween the fac ts a nd the Commiss ioner’s le g a l th e or

y ). As a n init ia l matt e r, the AL J found in h is 2 00 2 d e c isi on

that N ob le wa s a

ble to h a nd le some deg ree of stress, c ould lift and car ry up to twenty

pounds, could sit for a six-hour workday , and could complete a

limit ed ra

ng e of lig ht work ac tiviti es. The AL J acc ording ly found that Noble w as not “disabled” as def

ined by the SSA. This conclusion wa s co n sistent with the statement of
numerous treating and non-tre ating phy sicians, including Drs. L evan, Colema n, and Spence r, all of whom found that Noble w as ca pable of perf

orming some deg ree of work, provided it did not involve repe titive work with his hands or strenuous a ctivity
. T his decision itself—ag ree ing w ith the Commi ssioner in denying be nefits to Noble—sug g ests that the Commiss ion er ’s d ec ision was substantially

justified. Cf. Pierce, 48 7 U. S. a t 56 9 (a c kn ow le dg ing that wi nn ing or los ing be low is not dispo sitive with reg ard to whe ther the g overnme nt’s position i s substantially justified but that it can be pe rsuasive: “ a string of l osses [i n the l ower courts] can be indicative; and e ven more so a string of succe sses”). Noble, howeve r, contends that the second AL J decision, which was favor able to Noble, wa s not based on new medical evidence and that this implies that the gover nment’s orig inal position was not substantially

justified. We disag ree . When Noble soug ht review of the 2002 AL J decision, he fi le d an “Ad di ti ona l A rgume nt i n Su pp or t of a n A wa rd of B e ne fi ts” a nd

a tta c he d th e pa

rt ia lly favor able 2005 de cision alo n g wi t h numerous medica l rec ords and insura nce f orms. The district
c ourt re manded th e c a se wi th t he e xplic it i ns tr

uc tio n th a t th e Com mis sio ne r “ c on sid e r t he ne wl y
su bmi tte d e vid e nc e on

re mand .” Th e se c on d AL J (i n 2 00 5) he ld a ne w h e a ri nga t w hic h N ob le6

appea red a nd testified, and the L ist of Ex hibits attached to the 2005 AL J d ec i s i o n shows sever al documents that we re not available f or the 2002 de cision, including va rious medical r ecor ds and repor ts. I ndeed, in f

inding f or Noble the AL J expli citly noted that “a dditional medical evidenc e
rec eived in the course of developing claimant’s case for review at the hearing , as we ll as evidenc e in the form of c redible e vidence at the hea ring , consistent with medical evide nce i n the re cord justifies a conc lusion that the c laimant’s impairments are more limiting than wa s conclude d by the state examiners.” Finally , the district court’s de termination that the g overnme nt’s orig inal position was substantially

justified lends further

cre dence to the g ov er n m ent’s arg ument. See P ierce , 487 U.S. at 5 5 9 (n o t i ng that 28 U.S.C. § 2412(d)(1)( A) provide s that attorney ’s fe es shall be a war ded

“ un le ss thec ou rt f

ind s that th e po sit ion

of the Un it ed Stat e s w a s su bs ta nti a lly jus tif ie d. Th is fo rm ulatio n, a s o pp os e d to sim ply ‘u nle ss t he po sit ion

of the Unite d St ate s w a s su bs tanti a lly justifi e d , ’ e mp h a s iz e s th e f a c t th a t th e d e te r

mi n a ti o n is f

o r th e d is tr ic t c o u rt to ma k e , and thus sug g ests some defe renc e to the district cour t on appea l”) (inter

nal citation omitted). Ba sed o n o u r revie w of the r ecor d and in light of our def ere ntial standard of

revie w, we cannot c onclude t h at the district cour t abused its discretion. The court a ppropriate ly

considere d whether the g overnme nt’s position was rea sonable in law a nd fac t, under circumstance s as to which
rea sonabl e m i n d s could di ffe r. Id. at 565. Noble ha s put forth nothing that leads us to drawa “def inite and firm convic tion that the trial court committed a clea r err or of judg ment” in finding that the Commiss ioner’s position was substantially justified. See B owling v. Pfizer, Inc. , 102 F.3d 777, 780 (6th Cir. 1996). Acc ording ly , we f ind no abuse of disc retion. The judg ment of the district cour t is affirmed.