* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 11 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

ELGIN L. HARTTER,

Plaintiff-Appellant,

v. KENNETH S. APFEL, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,

Defendant-Appellee. No. 99-3095 (D.C. No. 95-4184-RDR) (D. Kan.) (36 F. Supp. 2d 1303)

ORDER AND JUDGMENT *

Before EBEL , LUCERO , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision 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.-2-

This appeal is taken from the district court denial of plaintiff’s renewed application for attorney’s fees under the Equal Acc ess to Justice Act (EAJA), 28 U.S.C. § 2412. Plaintiff applied for disability benefits in Novemb er of 1993, alleging disability from Post-Traumatic Stress Disorder (PTS D) as of January 1993. Following a hearing, the administrative law judge ( ALJ) determined plaintiff was not disabled. This decision was upheld by the Appe als Council and became the final decision of the Commissioner. Plaintiff thenfiled his complaint in district
court.In addition to his complaint, plaintiff filed new e vidence of disability. On review of this additional evidence, the government filed a motion to remand the matter and secured the agreement of the Appeals Cou ncil 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 th at 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 45.1 28 U.S.C. § 2412(d)(1)(A) provides that “[e]xcept a s otherwise specifically

provided for by statute, a court shall award to a p revailing party . . . fees . . . unless the court finds that the position of the Uni ted States was substantially justified . . . .” -3- 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 bec ause 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 determ ining 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 th e scales and required reevaluation of the Commissioner’s finding s. Plaintiff’s counsel recognized the significance of the new evid ence 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 d istrict court had not affirmed, modified or reversed the Commissioner’s d ecision but merely remanded the action to the Appeals Council, plaintiff “was n ot a prevailing party, [and] the district court did not have subject matter jurisdic tion to consider his EAJA fee application.” Hartter v. Apfel , No. 97-3115, 1998 WL 208871 at **5 (10th Cir.-4-

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 evid ence of record, including evidence not available at the time of the first hea ring, the ALJ determined that plaintiff was disabled. Plaintiff was subsequentlyawarded 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 occu rred 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 d ecision awarding benefits was based on some fifty-five exhibits whereas the initi al 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.-5-

The issue before us in this appeal is whether the g overnment’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 fo r 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 per son 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 meri ts “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 inthe initial denial of benefits, the ALJ ignored the treating physician rule. That rule requires the ALJ to give2 This assessment actually listed plaintiff’s respons es 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. B radshaw lists plaintiff has having PTSD, this report is dated after the ALJ’s d ecision. Moreover, although plaintiff characterizes Dr. Bradshaw as a “treating physician,” see Appellant’s Br. at 15-16, this report appears to be the only contac t Dr. Bradshaw had with plaintiff. -6- controlling weight to the treating doctor’s opinionabout the nature and severity of a claimant’s impairments if the opinion is both wel l supported by clinical and diagnostic techniques and not inconsistent with oth er 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’ opini ons unpersuasive given plaintiff’s ability to work for approximately twenty-three years without suffering the effects of his Vietnam experience with such sev erity as to prohibit work activity, as well as inconclusive results of a Minn esota Mulitphasic Personality Inventory assessment. See id. at 25. 2Additional evidence submitted to the Appeals Council did not provide a basis for changing the ALJ’s decision. 3-7-

By the time of the second decision, there was consi derably more--and more recent--medical evidence in support of awarding ben efits; indeed, the decision awarding benefits is based primarily on evidence pr oduced after the initial decision, e.g., reports from additional treating an d examining physicians and a new disability rating of 100% by the Veterans’ Admi nistration. Moreover, the Commissioner affirmatively sought the remand in vie w of this new evidence not available for the ALJ’s initial consideration. As stated earlier, the district court determined th at 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 a lthough 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 distr ict court did not abuse its discretion in denying EAJA fees.-8-

The judgment of the United States District Court fo r the District of Kansas is AFFIRMED.

Entered for the Court

David M. Ebel Circuit Judge