UNITED STATES COURT 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 [(EAJA), 28 U.S.C. § 2412(d)] provides for 

the award of fees and expenses to the prevailing party in a civil action against the 

Federal Government, unless the position of the United States was substantially 

 

*

 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. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 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 disability and Supplemental Security 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 denied the request, finding 

that although Mr. Groberg had prevailed in his appeal to this court, the Commissioner 

of Social Security (Commissioner) had demonstrated that his position was 

substantially justified. Exercising jurisdiction 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, severe asthma, depression, and anxiety. After the agency 

denied his applications initially and on reconsideration, 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 include any mental restrictions. 

 Given this RFC and Mr. Groberg’s age, education, and work experience, the 

ALJ further determined that although he could not return to his past relevant work, 

there were a significant number of jobs that he could perform in the national 
- 3 - 

economy. He was therefore not disabled within 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 disorder to be severe impairments; (2) the 

ALJ erred in not finding him disabled under Listing 1.04A for disorders of the spine; 

(3) the ALJ erred in finding that the opinions of many of his treatment providers 

should be afforded “no weight”; and (4) the ALJ erred in finding that Mr. Groberg 

retained the RFC to perform the jobs that the vocational expert (VE) had identified at 

the hearing. The district court affirmed the Commissioner’s decision. 

Mr. Groberg then appealed to this court, raising essentially the same issues he 

had presented in the district court. A panel of this court found merit in two of his 

arguments: that the ALJ had failed to properly 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 since [Mr.] Groberg first applied for 

supplemental security income and disability benefits. There is nothing 

to be gained from prolonging the proceedings any further. According to 

the ALJ’s own RFC analysis, [Mr.] Groberg is extremely limited in 

terms of his physical capacities. Notwithstanding the ALJ’s tendency to 

avoid the issue by misstating the evidence, the medical evidence points 
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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 condition met or equaled a listed 

impairment, it appeared to this court 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 claimant must be a prevailing party who 

incurred fees in an action by or against the 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 government can defeat an EAJA claim, however, by showing 

that its position was substantially justified. See id.; Hackett v. Barnhart, 475 F.3d 

1166, 1172 (10th Cir. 2007) (stating government bears burden of showing its position 

was substantially justified). 
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An agency position is substantially justified 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 quotation 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 based.” 28 U.S.C. § 2412(d)(2)(D). This means that EAJA 

fees generally should be awarded if the ALJ’s reasons for denying benefits were 

unreasonable, “even if the government [subsequently] advanced a reasonable 

litigation position.” Hackett, 475 F.3d at 1174 (internal quotation marks omitted). 

“This is only the general rule, however[.]” Id. Even when the ALJ’s reasons were 

unreasonable, EAJA fees may still be denied when the Commissioner reasonably 

(even if unsuccessfully) argues in litigation that the ALJ’s errors were harmless.1

 

 

1

 By “harmless error” we mean only a “true” harmless error argument—that the 

ALJ’s errors do not require reversal because other reasoning already contained 

explicitly or implicitly in his decision supplied sufficient 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 confidently say that no reasonable administrative 

factfinder, following the correct analysis, could 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 affirmance 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); cf. Fleming v. Barnhart, 

194 F. App’x 543, 546 (10th Cir. 2006) (predating Hackett) (finding no abuse of 

discretion in denial of EAJA fee where “the district court declined the 

Commissioner’s invitation, under a harmless error analysis, to supply . . . missing 

RFC findings regarding standing and walking . . . [but] found the government’s 

position to be substantially justified . . . not because the [ALJ’s] error was harmless, 

but because it was not unreasonable under the circumstances of this case to argue that 

it was harmless”).2

We review the district court’s determination that the government’s position 

was substantially justified for an abuse of discretion. Pierce, 487 U.S. at 559; 

Gilbert, 45 F.3d at 1394. “A district court abuses 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 legal 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 assertion of “entirely new legal theories” on appeal in 

attempt to justify ALJ’s failure to satisfy his step-five duties). 

2

 Although these cases are unpublished and 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 impairments. It made the following observations concerning 

the ALJ’s evaluation of the evidence: 

The ALJ’s evaluation of the medical evidence concerning 

[Mr.] Groberg’s mental impairments was seriously deficient and 

his analysis of them was therefore 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 depression, secondary to abuse as a child. He may 

also be suffering from a personality disorder. There is also indication 

that he has a history of bipolar disorder. 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 findings” leading him to conclude “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 medical records reflect 

serious symptomology throughout this period.” Id. 

 Second, the ALJ concluded that “with few exceptions, [Mr.] Groberg’s mental 

symptoms have consistently been described 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 “impermissibly pick[ing] and cho[osing] portions 
- 8 - 

of the medical record favorable to his interpretation, while 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 restriction in his ability to perform work activities. As the 

panel pointed out, however, a score of 51 indicates 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 was “reiterated . . . a few weeks 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 demonstrates a lack of familiarity 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 attacks while in crowds.” Id. The panel 

cited several earlier references in the record 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 treatment as “erratic and 
- 9 - 

result-oriented.” Id. “The ALJ picked and chose among their opinions, apparently 

based solely on whether they had presented data that he could use to support his 

opinion that [Mr.] Groberg’s mental impairments . . . would create no restriction at 

all for purposes of his RFC.” Id. The panel noted that the ALJ had assigned no 

weight to five of his treating medical sources. The ALJ had “noted in each case that 

these sources were non-acceptable medical sources rather than licensed physicians.” 

Id. But the ALJ then gave great weight to the opinion of examining social worker 

Sylvia Eyre, whom the ALJ also considered a “non-acceptable medical source.” Id. 

Moreover, “[t]he only virtue 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 other medical evidence.” Id. But this analysis was faulty, 

because “[a] score of 50 lies within the 41-to-50 range, which indicates serious 

symptoms or serious impairment in social, occupational, or school functioning, such 

as inability to keep a job.” Id. at 70-71 (internal quotation marks omitted). 

“Thus, even the opinion of Ms. Eyre demonstrate[d] that [Mr.] Groberg’s mental 

impairments were serious and likely to have some effect 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 specific finding that the ALJ 

 

3

 The merits panel appears to have made two ultimately inconsequential errors 

concerning Ms. Keane. First, 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. Keane’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 suicidal 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 difficulties 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/Krahulec] noted that he “[a]ppears to be 

experiencing panic with agoraphobia as well.” His symptoms were 

sufficiently serious that she ordered a thyroid study to rule out a 

physically based problem. 

Id. (brackets and citations omitted). 

 These many, serious deficiencies show the ALJ’s decision concerning 

Mr. Groberg’s mental impairments, together with the resulting 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 registered nurse.” Aplee. Br. at 7. (The ALJ referred 

to her as a “treating physician” 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 panel’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 had changed her last name to Krahulec. 

See Aplee. Br. at 14 n.4. If anything, correction of these errors 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 that question next and conclude it did not. 

 B. Commissioner’s Litigation Position

In the district court, Mr. Groberg presented three arguments pertaining to his 

mental impairments. First, he complained that the ALJ failed to treat his mental 

impairments as “severe 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 thus not an unreasonable litigation position. But the ALJ’s 

error in minimizing the effect of Mr. Groberg’s mental impairments on his ability to 

work clearly affected his analysis at the ensuing steps of the analysis. 

The merits panel combined its discussion of Mr. Groberg’s second and third 

arguments. In his second argument, Mr. Groberg complained that the ALJ erred by 

finding that the opinions of many of his health care providers should be accorded no 

weight. The merits panel’s concerns were that (1) the ALJ completely rejected, often 

for unsupportable reasons, many opinions whose consensus was that Mr. Groberg 

“had serious mental impairments 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 analysis 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 dovetailed closely with the third and most 

important of his arguments about his mental impairments. He contended that the ALJ 

should have found he lacked the RFC to perform sedentary work due to his mental 

impairments. See id. at 42. In a single paragraph, the Commissioner made the 

following arguments: (1) Mr. Groberg failed to “discuss in detail any particular 

limitations that should have been included” in the RFC; and (2) “the evidence 

supported the ALJ’s conclusion that [Mr. Groberg’s] mental ailments were well 

controlled on medication such that they did not impose functional limitations.” Id. at 

78. 

 With regard to the Commissioner’s first responsive argument, Mr. Groberg 

contended that the ALJ should have included or at least discussed mental limitations 

involving his “ability to understand, carry out or remember instructions; the ability to 

respond appropriately to supervision and relate to supervisors and co-workers; and, 

the ability to tolerate work pressures in a work setting.” Id. at 42. Although 

Mr. Groberg did not quantify the particular restrictions his mental impairments posed 

for his ability to work, his point was that the ALJ had imposed no limitation at all, 
- 13 - 

despite abundant medical evidence to the contrary. The Commissioner’s argument 

therefore failed to show that the ALJ’s error was harmless. 

 The Commissioner’s second responsive argument appears to be based on 

a single reference in the ALJ’s decision: “[I]n August 2007, . . . Angela L. Krahulec 

. . . observed that Mr. Groberg’s depression and anxiety were adequately controlled 

with medication, eradicating all symptoms of both conditions (see Exhibit 20F, p. 

4).” Aplt. App., Vol. II at 18. These observations were recorded on a form 

submitted to the ALJ as Exhibit 20F. But Ms. Krahulec never actually “observed” 

that his depression and anxiety were “adequately controlled 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 evidence 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 single “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 “zero” ratings for anxiety and depression 

symptoms, Mr. Groberg stated that he planned to “begin[] an outpatient group for 

anxiety and panic,” Aplt. App., Vol. II at 275, indicating an ongoing problem that 

deserved further attention from the ALJ. 
- 14 - 

 We stress again that the ALJ concluded these ailments would pose no limit on 

Mr. Groberg’s ability to work. The merits panel found this evaluation to be 

“seriously deficient” and “unsupported by substantial evidence.” Groberg, 415 F. 

App’x at 67. The Commissioner’s attempt 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 the merits appeal briefing that should be 

mentioned here.4

 First, he argued that “[t]he record . . . supports the ALJ’s finding 

that [Mr.] Groberg’s daily activities belied his allegations that his mental condition 

imposed severe functional limitations.” Aplee. 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 “while 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 competing evidence.” Id. at 231. The Commissioner did not cite any 

particular record evidence to support the ALJ’s decision to assign no limitation based 

on Mr. Groberg’s mental condition. Nor did he address how longitudinal fluctuations 

 

4

 In his reply brief in the merits appeal, Mr. Groberg did not assert that these 

arguments were barred based on the Commissioner’s failure to raise them before the 

district court. 
- 15 - 

in Mr. Groberg’s condition could be equated to “competing evidence.” If the 

Commissioner meant that the ALJ could simply pick and choose 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 jobs and the ALJ had only listed unskilled 

jobs at step five of his analysis. The Commissioner contended that because unskilled 

work requires “little or no judgment to do simple 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 could not tolerate being around large groups of 

people he did not know, two of the three jobs 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 because it supplies a 

new factual and/or legal predicate not present in the ALJ’s reasoning. In any event, it 

runs directly counter to Tenth Circuit authority. A limitation to “simple work” or 

“unskilled jobs” is generally insufficient to address a claimant’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, 1996 WL 50459, at *2 (10th Cir. Feb. 7, 1996) 

(“[T]he tacit premise in the ALJ’s analysis, i.e., that a cognitive or emotional 
- 16 - 

impairment may be functionally equated with the lack of a skill, as that term is 

employed in the Secretary’s regulations, is wrong. Numerous authorities illustrate 

the basic point that intact mental aptitudes are not skills, but, rather, general 

prerequisites for most work 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 the ALJ erred in determining that 

Mr. Groberg’s back problems did not meet the Listing for spinal disorders. The ALJ 

had interpreted the medical evidence as failing to show “nerve root compression, 

spinal arachnoiditis, or pseudoclaudication.” Groberg, 415 F. App’x at 72 (internal 

quotation marks omitted). The merits panel reached a different conclusion than the 

ALJ about whether there was any evidence of these conditions in the record. It 

concluded that there was enough evidence to require further discussion of whether 

Mr. Groberg met the Listing. 

 On appeal, the Commissioner defended the ALJ’s position by relying on a 

regulation concerning the quantum of evidence required to meet the Listing. The 

merits panel read this regulation differently 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 issues 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 Commissioner took a substantially justified position 

concerning the spinal disorder Listing issue, however, does not bar Mr. Groberg from 

obtaining an EAJA fee. As we have shown, neither the ALJ’s decision nor the 

Commissioner’s litigation position on the mental impairment issue was substantially 

justified. The mental impairment 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 remand 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 position in case was not “substantially 

justified” and that EAJA fee was appropriate even though Commissioner prevailed on 

five of six issues presented in district court, where plaintiff obtained remand based on 

single discrete issue that resulted in unreasonable denial of benefits, other issues 

were unrelated to that issue, and other issues did not provide 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 instructions to grant the motion and to award a 

reasonable fee and appropriate costs to Mr. Groberg. 

 ENTERED FOR THE COURT 

 Scott M. Matheson, Jr. 

 Circuit Judge