UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

MARTY GROBERG, Plaintiff-Appellant,

v. MICHAEL J. ASTRUE, in his capacity as Commissioner of the Social Security Administration, Defendant-Appellee. No. 11-4173 (D.C. No. 1:08-CV-00159-DAK) (D. Utah)

ORDER AND JUDGMENT *

Before MATHESON , Circuit Judge, PORFILIO , Senior Circuit Judge, and BALDOCK , Circuit Judge.
“The Equal Access to Justice Act [(E AJA), 28 U.S.C. § 24 12(d)] provides for the award of fees and expenses to the pr evailing party in a ci vil action against the Federal Government, unless the position of the United States was substantially

* After examining the briefs and appella te record, this pa nel 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 14, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - justified.” Harris v. R.R. Ret. Bd. , 990 F.2d 519, 520 (10th Cir. 1993) (internal quotation marks omitted). After successfully appealing the denial of his application for Social Security disab ility and Supplemental Secur ity Income (SSI) benefits, see Groberg v. Astrue , 415 F. App’x 65, 73 (10th Cir. 2011), Mr. Groberg sought an award of EAJA fees in district court. The district court deni ed the request, finding that although Mr. Groberg had prevailed in hi s appeal to this c ourt, the Commissioner of Social Security (Co mmissioner) had demonstrated that his position was substantially justified. Exercising juri sdiction under 28 U.S.C. § 1291, we reverse and remand with instructions to award Mr. Groberg an appropriate EAJA fee. BACKGROUND In his applications for disability and SSI benefits, Mr. Groberg alleged that he had become disabled on May 22, 2002, due to chronic low back pain, degenerative joint disease in both knees, se vere asthma, depression, and anxiety. After the agency denied his applications initially and on r econsideration, he received a hearing before an administrative law judge (ALJ). The ALJ determined that Mr. Groberg’s residual functional capacity (RFC) limited him to sedentary work, with certain physical restrictions. The ALJ did not in clude any mental restrictions. Given this RFC and Mr. Groberg’s age, education, and work experience, the ALJ further determined that although he coul d not return to his past relevant work, there were a significant num ber of jobs that he coul d perform in the national- 3 - economy. He was therefore not disabled w ithin the meaning of the Social Security
Act. The Appeals Council affirmed the denial of benefits. Mr. Groberg then filed an action in federal district court seeking review of the Commissioner’s decision. He raised the following issues: (1) the ALJ erred in failing to find Mr. Groberg’s depression, anxiety disorder, and panic diso rder to be severe impairments; (2) the ALJ erred in not finding him disabled under Li sting 1.04A for disorders of the spine; (3) the ALJ erred in finding that the opini ons of many of his treatment providers should be afforded “no wei ght”; and (4) the ALJ erred in finding that Mr. Groberg retained the RFC to perform th e jobs that the vocational e xpert (VE) had identified at the hearing. The district court af firmed the Commissioner’s decision. Mr. Groberg then appealed to this court, raising essentially the same issues he had presented in the district court. A pa nel of this court found merit in two of his arguments: that the ALJ had failed to pr operly evaluate the effect of his mental impairments on his ability to work, and that the ALJ had failed to properly analyze the evidence concerning whether Mr. Groberg’s spinal impairment met a Listing. The merits panel determined that an immediate award of benefits was appropriate. The panel stated: It has been over five years sinc e [Mr.] Groberg first applied for supplemental security income and di sability benefits. There is nothing to be gained from prolonging the pro ceedings any further. According to the ALJ’s own RFC analys is, [Mr.] Groberg is extremely limited in terms of his physical capacities. No twithstanding the ALJ’s tendency to avoid the issue by misstating the evid ence, the medical evidence points- 4 - to a correspondingly debilitating set of mental impairments. The VE testified that [Mr.] Groberg could not do even the few identified jobs if mental difficulties caused him to miss more than two days of work per month, or if he were mentally “off task” more than ten percent of the time. Given a proper analysis and evaluation of his mental impairments, there is no reasonable probability that [Mr.] Groberg would be denied benefits. Groberg , 415 F. App’x at 73 (record citation omitted). Mr. Groberg’s counsel thereafter applied to the district court for an award of EAJA fees. The district court denied the application. It concluded: The Tenth Circuit’s decision . . . merely demonstrates that reasonable persons could disagree as to which sources to rely upon and what weight to give to the medical sources and treatment records. The ALJ in this case provided a lengthy and detailed assessment of the evidence and sources. Moreover, while the ALJ could have more fully discussed whether Plaintiff’s c ondition met or equaled a listed impairment, it appeared to this cour t to be adequate under Tenth Circuit precedent. The court concludes that the government was substantially justified both in law and fact in defending the ALJ’s decision. Aplt. App., Vol. I at 89-90. ANALYSIS To obtain an EAJA fee award, the cl aimant must be a prevailing party who incurred fees in an action by or against th e United States. 28 U.S.C. § 2412(d)(1)(A). Mr. Groberg satisfied this requirement by obtaining a remand from this court for an award of benefits. The gove rnment can defeat an EAJA claim, however, by showing that its position was subs tantially justified. See id. ; Hackett v. Barnhart , 475 F.3d 1166, 1172 (10th Cir. 2007) (stating govern ment bears burden of showing its position was substantially justified).- 5 - An agency position is substantially justif ied for purposes of the EAJA if it is “justified in substance or in the main—that is, justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood , 487 U.S. 552, 565 (1988) (internal quotation marks omitted). In other words, the government ’s position must have had a “reasonable basis both in law and fact.” Id. (internal quotati on marks omitted); Gilbert v. Shalala , 45 F.3d 1391, 1394 (10th Cir. 1995). “‘[P]osition of the United States’ means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is base d.” 28 U.S.C. § 2412(d)(2)(D). This means that EAJA fees generally should be awarded if the ALJ’s reasons for denyi ng benefits were unreasonable, “even if the government [subsequently] advanced a reasonable litigation position.” Hackett , 475 F.3d at 1174 (interna l quotation marks omitted). “This is only the general rule, however[.]” Id. Even when the ALJ’s reasons were unreasonable, EAJA fees may still be deni ed when the Commiss ioner reasonably (even if unsuccessfully) argues in litigation that the ALJ’s errors were harmless. 1

1 By “harmless error” we mean only a “true” harmle ss error argument—that the ALJ’s errors do not require reversal b ecause other reasoning already contained explicitly or implicitly in his decision supplied suffici ent grounds for affirmance notwithstanding the error, see, e.g., Fischer-Ross v. Barnhart , 431 F.3d 729, 734 (10th Cir. 2005), or because “we could conf idently say that no reasonable administrative factfinder, following the correct analysis, coul d have resolved [a] factual matter in any other way,” Allen v. Barnhart , 357 F.3d 1140, 1145 (10th Cir. 2004). We do not consider an entirely new rationale for af firmance on grounds different from those previously considered by the ALJ to be a true harmless error argument. See Hackett , 475 F.3d at 1174-75 (rejecting, in light of SEC v. Chenery Corp. , 332 U.S. 194, 196 (continued)- 6 - See Johns v. Astrue , 455 F. App’x 846, 848 (10th Cir. 2011); c f. Fleming v. Barnhart , 194 F. App’x 543, 546 ( 10th Cir. 2006) (predating Hackett ) (finding no abuse of discretion in denial of EAJA fee wher e “the district court declined the Commissioner’s invitation, under a harmless error analysis, to supply . . . missing RFC findings regarding standing and walkin g . . . [but] found the government’s position to be substantially ju stified . . . not because the [ALJ’s] error was harmless, but because it was not unreasonable under the ci rcumstances of this case to argue that it was harmless”). 2
We review the district court’s determ ination that the go vernment’s position was substantially justified fo r an abuse of discretion. Pierce , 487 U.S. at 559; Gilbert , 45 F.3d at 1394. “A district court a buses its discretion when it commits an error of law or makes clearly erroneous factual findings.” Wyandotte Nation v. Sebelius , 443 F.3d 1247, 1252 (10th Cir. 2006). “The issue of whether the district court relied on the correct le gal standard in applying the EAJA, however, is a matter of law which we review de novo .” Hadden v. Bowen , 851 F.2d 1266, 1268 (10th Cir. 1988).

(1947), Commissioner’s asse rtion of “entirely new lega l theories” on appeal in attempt to justify ALJ’ s failure to satisfy his step-five duties).
2 Although these cases are unpublished a nd therefore not precedential, we cite them for their persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1(A).- 7 - 1. Mental Impairment Issue A. ALJ’s Findings The merits panel found numerous serious errors in the ALJ’s analysis of Mr. Groberg’s mental impair ments. It made the foll owing observations concerning the ALJ’s evaluation of the evidence: The ALJ’s evaluation of the medical evidence concerning [Mr.] Groberg’s mental impairme nts was seriously deficient and his analysis of them was ther efore unsupported by substantial evidence. According to the extensive medical evidence in the record, [Mr.] Groberg has a long history of anxiety (including agoraphobia and panic attacks) and depre ssion, secondary to abus e as a child. He may also be suffering from a personality di sorder. There is also indication that he has a history of bipolar diso rder. He has been hospitalized for depression in the past. Groberg , 415 F. App’x at 67-68. The merits panel continued by enumerating the ALJ’s several “unsupported fi ndings” leading him to conc lude “that [Mr.] Groberg’s mental impairments posed no limitation on his ability to work.” Id. at 68. First, although the ALJ stated that records from April to December 2006 showed minimal or no mental symptomology , in fact, “the medi cal records reflect serious symptomology thro ughout this period.” Id. Second, the ALJ concluded that “with few exceptions, [Mr.] Groberg’s mental symptoms have consistently been descri bed as being of only minor severity.” Id. (brackets and internal quotation marks omitted ). The panel disagreed, noting that the ALJ had reached this conclusion by “imper missibly pick[ing] and cho[osing] portions- 8 - of the medical record favorab le to his interpretation, wh ile ignoring less favorable evidence.” Id. Third, the panel disputed the ALJ’ s interpretation of a GAF score of 51 assigned to Mr. Groberg by a treating source. The ALJ had opined that this score indicated only a mild restric tion in his ability to perform work activities. As the panel pointed out, however, a score of 51 i ndicates moderate, not mild, restrictions. Furthermore, the score was at the bottom of the 51-to-60 range. Also, the panel took issue with the ALJ’s use of the GAF score in isolation, given that notes from the same treatment session that produced it showed that Mr . Groberg was suffering from significant mental problems. Fourth, the ALJ had stated that this source’s conclusion that Mr. Groberg’s symptoms were only mild wa s “reiterated . . . a few w eeks later by two additional treating sources.” Id. at 69 (internal quotation marks omitted). But the panel noted that “[t]he two reports he cited do not support this conclusion.” Id. Fifth, the panel observed that “[t] he ALJ’s chronological assessment of [Mr.] Groberg’s mental symptoms demonstr ates a lack of fa miliarity with the record.” Id. at 70. The ALJ “claimed that in April 2006 [Mr.] Groberg alleged for the first time that he suffered from panic attack s while in crowds.” Id. The panel cited several earlier references in the r ecord to Mr. Groberg’s panic disorder. Sixth, the panel described the ALJ’s analysis of Mr. Groberg’s treating physicians and other providers of mental health treatme nt as “erratic and- 9 - result-oriented.” Id. “The ALJ picked and chose among their opinions, apparently based solely on whether they had presente d data that he could use to support his opinion that [Mr.] Groberg’s mental impair ments . . . would crea te no restriction at all for purposes of his RFC.” Id. The panel noted that the ALJ had assigned no weight to five of his treati ng medical sources. The ALJ ha d “noted in each case that these sources were non-acceptabl e medical sources rather th an licensed physicians.” Id. But the ALJ then gave great weight to the opinion of exam ining social worker Sylvia Eyre, whom the ALJ also cons idered a “non-acceptable medical source.” Id. Moreover, “[t]he only virt ue of Ms. Eyre’s opinion that the ALJ mentioned was her conclusion that [Mr.] Groberg’s GAF score was 50, which [the ALJ] found consistent with the ot her medical evidence.” Id. But this anal ysis was faulty, because “[a] score of 50 lies within the 41-to-50 range, whic h indicates serious symptoms or serious impairment in social , occupational, or sc hool functioning, such as inability to keep a job.” Id. at 70-71 (internal quotation marks omitted). “Thus, even the opinion of Ms. Eyre demons trate[d] that [Mr.] Groberg’s mental impairments were seri ous and likely to have some ef fect on his ability to work.” Id. at 71. Seventh, the panel addressed the ALJ’s decision to give controlling weight to the opinions of Angela Keane. 3 It noted that her only sp ecific finding that the ALJ

3 The merits panel appears to have ma de two ultimately inconsequential errors concerning Ms. Keane. Firs t, the Commissioner now notes she was not a physician; (continued)- 10 - cited was her conclusion that Mr. Groberg had a GAF score of 51. This low score was consistent with Ms. Kean e’s other treatment records, but inconsistent with the ALJ’s conclusion that Mr. Groberg had no serious mental impairment. The panel cited later records from this source, which indicated that “[t]hings had taken a turn for the worse.” Id. at 71. At that point, Mr. Groberg reported dysphoric mood with suicid al ideation, but stated “I would never do it because of my dog. He’s more than a dog, he’s my best friend.” Groberg reported difficultie s with going to the store or accessing public transportation: “I get so nervous with my heart pounding and sweating that I just can’t deal with it.” He had experienced weight loss and increased social isolation over a period of several months and [Ms. Keane/Krahul ec] noted that he “[a]ppears to be experiencing panic with agoraphobi a as well.” His symptoms were sufficiently serious that she orde red a thyroid study to rule out a physically base d problem. Id. (brackets and citations omitted). These many, serious deficiencies show the ALJ’s decision concerning Mr. Groberg’s mental impairment s, together with the resul ting denial of benefits, was not substantially justified. Our review of the district court’s EAJA decision must also address whether this case is exceptional because the Commissioner’s litigation

she was an “advanced practice re gistered nurse.” Aplee. Br . at 7. (The ALJ referred to her as a “treating physic ian” in his decision. See Aplt. App., Vol. II at 22.) The merits panel also referred to her as an “MD/APRN.” Groberg , 415 F. App’x at 71. This designation appears in the record. See, e.g ., Aplt. App., Vol. II at 130, 214. Second, contrary to the pa nel’s assumption, she was the same person as “Angela L. Krahulec,” not a separate treatment provider. During the course of her treatment relationship with Mr. Groberg, Ms. Keane ha d changed her last name to Krahulec. See Aplee. Br. at 14 n.4. If anything, co rrection of these erro rs strengthens the panel’s critical analysis.- 11 - position “cure[d] unreasonable agency action.” Hackett , 475 F.3d at 1174 (internal quotation marks omitted). We turn to th at question next and conclude it did not. B. Commissioner’s Litigation Position In the district court, Mr. Groberg pres ented three arguments pertaining to his mental impairments. First, he complained that the ALJ failed to treat his mental impairments as “sever e impairments” at step two of the five-step analysis. In response, the Commissioner noted that any error concerning mental impairments at step two was harmless because the ALJ’s only duty at step two is to determine whether some serious impairment exists, thus requiring further analysis of the remaining steps. The merits panel agreed. Groberg , 415 F. App’x at 67. This argument, in itself, was t hus not an unreasonable litigation position. But the ALJ’s error in minimizing the effect of Mr. Grobe rg’s mental impairments on his ability to work clearly affected hi s analysis at the ensui ng steps of the analysis. The merits panel combined its discus sion of Mr. Groberg’s second and third arguments. In his second argument, Mr. Groberg complained th at the ALJ erred by finding that the opinions of many of his h ealth care providers should be accorded no weight. The merits panel’s c oncerns were that (1) the AL J completely rejected, often for unsupportable reasons, many opinions whose consensus was that Mr. Groberg “had serious mental impairme nts and needed treatment,” in favor of his own opinion that Mr. Groberg had no such problems; and (2) he assigned great weight to portions of other opinions that fit his analysis, giving his overall anal ysis an “erratic and- 12 - results-oriented” tone. Id. at 70. In light of the merits panel’s critique of the ALJ’s analysis of the medical evidence, the Commissioner’s arguments in favor of the ALJ’s decision on this point, see Aplee. Rev. Supp. App. at 74-78, were not substantially justified. Mr. Groberg’s second argument dovetaile d closely with the third and most important of his arguments a bout his mental impairments. He contended that the ALJ should have found he lacked the RFC to pe rform sedentary work due to his mental impairments. See id. at 42. In a single paragra ph, the Commissioner made the following arguments: (1) Mr. Groberg failed to “discuss in detail any particular limitations that should have been include d” in the RFC; and (2) “the evidence supported the ALJ’s conclusion that [Mr. Groberg’s] mental ai lments were well controlled on medication such that they did not impose functi onal limitations.” Id. at 78. With regard to the Commissioner’s fi rst responsive argument, Mr. Groberg contended that the ALJ should have included or at least di scussed mental limitations involving his “ability to understand, carry out or remember instru ctions; the ability to respond appropriately to superv ision and relate to superv isors and co-workers; and, the ability to tolera te work pressures in a work setting.” Id. at 42. Although Mr. Groberg did not quantify the particular restrictions his ment al impairments posed for his ability to work, hi s point was that the ALJ had imposed no limitation at all ,- 13 - despite abundant medical evidence to th e contrary. The Commissioner’s argument therefore failed to show that the ALJ’s error was harmless. The Commissioner’s second responsiv e argument appears to be based on a single reference in the ALJ’s decision: “[I]n August 2007, . . . Angela L. Krahulec . . . observed that Mr. Grobe rg’s depression and anxiety were adequately controlled with medication, eradicating a ll symptoms of both conditions ( see Exhibit 20F, p. 4).” Aplt. App., Vol. II at 18. Thes e observations were recorded on a form submitted to the ALJ as Exhibit 20F. Bu t Ms. Krahulec never actually “observed” that his depression and anxiet y were “adequately controlle d with medication” in the form just described. Instead , in that form she listed his medications and entered a “0” next to “Depression” and “Anxiety.” See id. at 273. Moreover, this is hardly solid ev idence that Mr. Groberg had achieved any long-term stability on his medications . As the merits panel decision makes clear, Mr. Groberg experienced many ups and downs in his condition. Groberg , 415 F. App’x at 71. A singl e “good day” at the doctor’s office does not necessarily signify the lack of any occupational effects from mental disorders. In fact, during the same appointment that produced the “zer o” ratings for anxi ety and depression symptoms, Mr. Groberg stated that he pla nned to “begin[] an outpatient group for anxiety and panic,” Aplt. App., Vol. II at 275, indicating an ongoing problem that deserved further atte ntion from the ALJ.- 14 - We stress again that the ALJ c oncluded these ailments would pose no limit on Mr. Groberg’s ability to work. The meri ts panel found this evaluation to be “seriously deficient” and “unsup ported by substantial evidence.” Groberg , 415 F. App’x at 67. The Commissioner’s atte mpt to argue harmless error was not substantially justified. In addition to the argument made in his district court merits brief, the Commissioner raised three contentions in th e merits appeal briefing that should be mentioned here. 4 First, he argued that “[t]he r ecord . . . supports the ALJ’s finding that [Mr.] Groberg’s daily act ivities belied his allegations that his mental condition imposed severe functional limitations.” Ap lee. Rev. Supp. App. at 230. But the issue was not whether Mr. Groberg had “severe functional limitations”; it was whether the ALJ should have imposed no limitation at all based on Mr. Groberg’s numerous mental disorders. Second, the Commissioner argued that “w hile the record also contained some evidence that [Mr.] Groberg’s mental condition had periodic downturns, there remained abundant evidence supporting the ALJ’s decision” and “it was the ALJ’s role to weigh comp eting evidence.” Id. at 231. The Commissioner did not cite any particular record evidence to support the AL J’s decision to assign no limitation based on Mr. Groberg’s mental conditi on. Nor did he address how longitudinal fluctuations

4 In his reply brief in the merits app eal, Mr. Groberg did not assert that these arguments were barred based on the Commis sioner’s failure to raise them before the district court.- 15 - in Mr. Groberg’s condition could be equa ted to “competing ev idence.” If the Commissioner meant that the ALJ could si mply pick and choo se from the medical evidence by only looking at Mr. Groberg’s condition when he was at his best, the merits panel rejected this contention. Third, the Commissioner argued that the ALJ implicitly included mental limitations in the hypothetical question he posed to the VE because the ALJ had asked the VE to identify only unskilled jo bs and the ALJ had only listed unskilled jobs at step five of his analysis. The Commissioner cont ended that because unskilled work requires “little or no judgment to do simp le duties that can be learned in a short period of time,” id. , Mr. Groberg failed to show that the ALJ erred in concluding he could do such work, even if he were mentally impaired to some degree. Furthermore, to the extent Mr. Groberg claimed he coul d not tolerate being around large groups of people he did not know, two of the three j obs the ALJ identified “did not require significant contact with people or any talking with people at all.” Id. at 233. This argument is not a true “harmless error” argument becau se it supplies a new factual and/or legal predicate not presen t in the ALJ’s reasoning . In any event, it runs directly counter to Tenth Circuit au thority. A limitation to “simple work” or “unskilled jobs” is generally in sufficient to address a claima nt’s mental impairments. Chapo v. Astrue , 682 F.3d 1285, 1290 n.3 (10th Cir. 2012) (citing cases); Wayland v. Chater , Nos. 95-7029, 95-7059, 19 96 WL 50459, at *2 (10t h Cir. Feb. 7, 1996) (“[T]he tacit premise in the ALJ’s analys is, i.e., that a c ognitive or emotional- 16 - impairment may be functionally equated with the lack of a skill , as that term is employed in the Secretary’s re gulations, is wrong. Nume rous authorities illustrate the basic point that intact mental aptit udes are not skills, but, rather, general prerequisites for most wo rk at any skill level.”). 5 The Commissioner’s argument on this point was therefore not substantially justified. 2. Spinal Disorder Listing The merits panel concluded that th e ALJ erred in determining that Mr. Groberg’s back problems did not meet th e Listing for spinal disorders. The ALJ had interpreted the medical evidence as fa iling to show “nerve root compression, spinal arachnoiditis, or pseudoclaudication.” Groberg , 415 F. App’x at 72 (internal quotation marks omitted). Th e merits panel reached a diffe rent conclusion than the ALJ about whether there was any evidence of these conditi ons in the record. It concluded that there was enough evidence to require further di scussion of whether Mr. Groberg met the Listing. On appeal, the Commissioner defe nded the ALJ’s position by relying on a regulation concerning the quantum of evid ence required to meet the Listing. The merits panel read this regulation differen tly than the Commissioner did. But the correct reading of this highly-technical regulation was far from obvious.

5 Although Wayland is an unpublished case and is not precedential, we cite it for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1(A).- 17 - The Commissioner’s position concerning the spinal disorder Listing issue was thus reasonable, even if wrong. These is sues were highly technical and required a nuanced interpretation of the medical record and the law. The district court did not abuse its discretion in determining that the ALJ’s and Commissioner’s position concerning this issue was substantially justified.
* * * The fact that the Commi ssioner took a substantia lly justified position concerning the spinal disord er Listing issue, however, does not bar Mr. Groberg from obtaining an EAJA fee. As we have s hown, neither the ALJ’s decision nor the Commissioner’s litigation position on the ment al impairment issu e was substantially justified. The mental impa irment issue was the primary focus of the merits panel’s decision, and the ALJ’s errors concerning Mr. Groberg’s mental impairments were sufficiently serious that a re mand for an award of benefits would have been justified on the basis of this issue alone. Thus, viewed as a whole , the Commissioner’s position in this case was not substantially justified. See Hackett , 475 F.3d at 1173 n.1 (concluding that Commissioner’s pos ition in case was not “substantially justified” and that EAJA fee was appropriate even t hough Commissioner prevailed on five of six issues presented in district court, where plai ntiff obtained remand based on single discrete issue that re sulted in unreasonable denial of benefits, other issues were unrelated to that issue, and other issues did not provi de a basis to affirm ALJ’s decision).- 18 - CONCLUSION We conclude the district court abused its discretion in denying the claimant’s motion for an EAJA fee. The judgment of the district court is therefore REVERSED and the case is REMANDED with instructi ons to grant the motion and to award a reasonable fee and appropria te costs to Mr. Groberg.
ENTERED FOR THE COURT

Scott M. Matheson, Jr. Circuit Judge