* Effective March 31, 1995, the functions of the Secretary of Health and

Human Services in social security cases were transferred to the Commissioner of

Social Security. P.L. No. 103-296. Pursuant to Fed. R. Civ. P. 25(d)(1), Shirley

S. Chater, Commissioner of Social Security, was substituted for Donna E. Shalala,

Secretary of Health and Human Services, as the defendant in this action. 

Although the caption reflects this substitution, in the text we continue to refer to

the Secretary, because she was the appropriate party at the time of the underlying

decision.

** This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

UNITED STATES COURT OF APPEALS

Filed 1/2/97

FOR THE TENTH CIRCUIT

LOUIS SMITH,

Plaintiff-Appellant,

v.

SHIRLEY S. CHATER,

Commissioner, Social Security

Administration,*

Defendant-Appellee.

No. 96-5109

(D.C. No. 93-C-1057-W)

(N.D. Okla.)

ORDER AND JUDGMENT**

Before PORFILIO, BALDOCK, and HENRY, Circuit Judges.
1 Pursuant to 28 U.S.C. § 636(c)(1), the parties consented to proceed before

the magistrate judge. Accordingly, our jurisdiction arises under § 636(c)(3) and

28 U.S.C. § 1291.

-2- 2

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) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument. 

Plaintiff appeals from an order of the magistrate judge1 denying his

application for attorney fees under the Equal Access to Justice Act (EAJA), 28

U.S.C. § 2412(d). The magistrate judge found that although plaintiff had

obtained a reversal and remand on his underlying social security disability claim,

the Secretary’s position had nevertheless been substantially justified. We review

that determination solely for an abuse of discretion, see Gilbert v. Shalala, 45

F.3d 1391, 1394 (10th Cir.), cert. denied, 116 S. Ct. 49 (1995), and affirm for

substantially the reasons expressed by the magistrate judge. 

On the merits of plaintiff’s claim for benefits, the magistrate judge reversed

a determination of nondisability and remanded for reconsideration of a belatedly

asserted and factually underdeveloped psychological impairment, primarily on the

basis of new evidence submitted below. The magistrate judge then denied

plaintiff’s ensuing EAJA application because, aside from what the new evidence

might show, the record supported the Secretary’s determination. 
-3- 3

“The test for substantial justification in this circuit is one of reasonableness

in law and fact.” Id. The magistrate judge noted that VA records pertinent to

plaintiff’s claim of psychological impairment had been under seal and unavailable

even to plaintiff during the administrative proceedings. In the magistrate judge’s

view, the fact that plaintiff finally secured some of these records and, on the basis

of their contents, successfully argued for additional administrative proceedings,

did not reflect any unreasonableness on the part of the Secretary. In this regard,

we cannot say the magistrate judge “made a clear error of judgment or exceeded

the bounds of permissible choice in the circumstances.” Moothart v. Bell, 21

F.3d 1499, 1504 (10th Cir. 1994)(defining abuse of discretion)(quotation

omitted). 

Plaintiff argues that the Secretary was unjustified in failing to take

affirmative steps to assist him in unsealing his VA records. However, he never

requested such assistance during the administrative proceedings in this case. Cf.

20 C.F.R. § 404.950(d)(2)(party seeking issuance of subpoena must file timely

written request, specifying names, location, and materiality of documents sought

and explaining need for subpoena). Indeed, plaintiff’s testimony before the

administrative law judge (ALJ) indicated only that his VA records had been under

seal “at one time,” that he already possessed some of them, and that he was then

in the process of obtaining the rest. See R. II at 49. Furthermore, plaintiff does
2

Indeed, the chief authority plaintiff relies on states that “[a]n ALJ has the

duty to develop the record by obtaining pertinent, available medical records.” 

Carter v. Chater, 73 F.3d 1019, 1022 (10th Cir. 1996)(emphasis added). 

-4- 4

not cite any precedent extending the Secretary’s ordinary duty to develop the

record to include the novel obligation involved here.2

 Thus, while we agree with

the magistrate judge that, on remand, the ALJ should issue a protective order if

such assurance would facilitate the release of any additional VA records currently

withheld, we do not consider the prior absence of such an order indicative of

unjustified conduct. See Martinez v. Secretary of Health & Human Servs., 815

F.2d 1381, 1383 (10th Cir. 1987)(“[I]f the governing law is unclear or in flux, it

is more likely that the government’s position will be substantially justified.”). 

Accordingly, the judgment of the magistrate judge, entered in the United

States District Court for the Northern District of Oklahoma, is AFFIRMED.

Entered for the Court

Bobby R. Baldock 

Circuit Judge