NONPRECEDENTIAL DISPOSITION To be cited only in accordan ce with Fed. R. App. P. 32.1 

# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604 Argued March 3, 2010 Decided March 16, 2010



### Before

F RANK H. E ASTERBROOK , Chief Judge

D ANIEL A. M ANION , Circuit Judge

T ERENCE T. E VANS , Circuit Judge

No. 09

- 3606

D ENNIS F ROST , Plaintiff

- Appellant
,

v

. M ICHAEL J. A STRUE , Commissioner of Social Security
, Defendant

- Appellee

. Appeal from the United States District Court for the Central District of Illinois.

No. 08

- 2106 David G. Bernthal, Magistrate Judge

.

O rder
An administrative law judge turned down Dennis Frost’s application for disability benefits. A magistrate judge, presiding by consent, see 28 U.S.C. §636(c), concluded that the ALJ’s decision was too sketchy to allow judicial review. Although the magis trate judge thought that substantial evidence supports the ALJ’s credibility findings, he b elieved that the ALJ’s decision did not contain enough discussion of Frost’s me n tal

- health records to convey the ALJ’s reasons for preferring one interpretation of t hose r e cords over another, and particularly for disagreeing with Dr. Howard Levine’s evalu a tion of Frost’s condition. The magistrate judge remarked: “Some evidence in these r e cords would support the ALJ’s conclusion that [Frost’s] mental health was i m provi ng, but other evidence suggests the opposite.” The magistrate judge remanded for a better e xplanation under sentence 4 of 42 U.S.C. §405(g). 2009 U.S. Dist. L EXIS 52473 (C.D. Ill. June 22, 2009).
Frost then applied for attorneys’ fees, which the Equal Acce ss to Justice Act makes available “unless the court finds that the position of the United States was substantially justified.” 28 U.S.C. §2412(d)(1)(A). As Frost saw matters, a disability benefits decision that is substantially justified must be affirmed; since this one was vacated and r emanded, the government’s position cannot have been substantially justified. The magi strate judge saw things differently. He noted that the ALJ’s credibility finding had beenNo. 09

- 3606 Page 2

sustained, and that the remand reflected shortcom ings in the ALJ’s opinion rather than any conclusion that Frost is entitled to benefits

— let alone so clearly entitled to disability benefits that any contrary litigating position could not be substantially justified.
Frost’s appeal repeats his contention t hat the reasons supporting the remand under §405 necessarily show that the Commissioner’s position was not substantially just i fied. We rejected a similar contention in United States v. Tho u venot, Wade & Moerschen, Inc
., No. 09

- 2421 (7th Cir. Feb. 18, 2010) . That opinion covered three consol i dated appeals. The third, Park v. Astrue , was in the same posture as Frost’s. Park applied for disability benefits; an ALJ denied the application; a judge remanded under §405 after co n cluding that the ALJ had not adequat ely explained his concl u sions; the same judge then denied a motion for atto r neys’ fees under the EAJA. We held that a remand does not necessarily entitle the claimant to a t torneys’ fees; to the contrary, we stated, when the same judge who r e manded a case c oncludes that the agency’s position nonetheless was substa ntially justified, “that decision is entitled to substantial weight” on appeal. Tho u venot , slip op. 18. Only if the district court abused its discretion may we reverse a decision to deny (or grant) a motion for fees under the EAJA. Pierce v. Underwood , 487 U.S. 552, 559

- 63 (1988). That deferential standard, combined with the “substantial weight” to which the judge’s decision is entitled, leads to affirmance. Insufficient explanation by an ALJ di f fers from lack of su b stantial justification for a denial of benefits. For all we can tell, benefits may again be denied on remand, and that decision may be sustained on judicial review; Frost’s vi c tory may be short lived. We recognize that the remand is a vict ory that can in principle support an award of fees, see Shalala v. Schaefer , 509 U.S. 292, 300

– 02 (1993). But nothing about this remand, in particular, implies the absence of substa n tial justification. Many a justified position is poorly explained; the mag i s trate judge thought that this is the right way to understand the ALJ’s decision on Frost’s claim.

“Substa n tially justified” does not mean “right”; that’s one holding of Underwood . The EAJA differs from 42 U.S.C. §1988(b) and many similar statutes because it does not r equire an award to every prevailing party. Trying to figure how grave an error is r equired before the gover n ment’s defense of its position lacks “substantial justification” is a difficult e x ercise in line

- drawing, as the Supreme Court conclud ed in Underwood . The magistrate judge did not abuse his discretion in placing this case on the “substa n tially justified, if unsuccessful” side of that line.

A FFIRMED