* Effective March 31, 1995, the functions of the Secr etary of Health and

Human Services in social security cases were transf erred to the Commissioner of Social Security. P.L. No. 103-296. Pursuant to Fe d. R. Civ. P. 25(d)(1), Shirley S. Chater, Commissioner of Social Security, was sub stituted for Donna E. Shalala, Secretary of Health and Human Services, as the defe ndant in this action. Although the caption reflects this substitution, inthe 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** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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.

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 cons ented to proceed before

the magistrate judge. Accordingly, our jurisdictio n arises under § 636(c)(3) and 28 U.S.C. § 1291. 2 -2- 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) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Plaintiff appeals from an order of the magistrate j udge 1 denying his application for attorney fees under the Equal Acces s 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 so cial security disability claim, the Secretary’s position had nevertheless been subs tantially justified. We review that determination solely for an abuse of discretio n, 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, th e magistrate judge reversed a determination of nondisability and remanded for r econsideration of a belatedly asserted and factually underdeveloped psychological impairment, primarily on the basis of new evidence submitted below. The magistr ate judge then denied plaintiff’s ensuing EAJA application because, aside from what the new evidence might show, the record supported the Secretary’s de termination.3 -3- “The test for substantial justification in this cir cuit is one of reasonableness in law and fact.” Id. The magistrate judge noted that VA records pertin ent to plaintiff’s claim of psychological impairment had b een under seal and unavailable even to plaintiff during the administrative proceed ings. 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 addition al 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 er ror of judgment or exceeded the bounds of permissible choice in the circumstanc es.” Moothart v. Bell , 21 F.3d 1499, 1504 (10th Cir. 1994)(defining abuse of discretion)(quotation omitted). Plaintiff argues that the Secretary was unjustifiedin failing to take affirmative steps to assist him in unsealing his VArecords. 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, plainti ff’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 does2 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 adde d). 4 -4- not cite any precedent extending the Secretary’s or dinary duty to develop the record to include the novel obligation involved her e. 2 Thus, while we agree with the magistrate judge that, on remand, the ALJ shoul d 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 s uch 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 governin g 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