FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                            May 25, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
KATRINA M. HAYS,

      Plaintiff - Appellant,

v.                                                          No. 16-1341
                                                   (D.C. No. 1:13-CV-01115-LTB)
NANCY A. BERRYHILL, Acting                                    (D. Colo.)
Commissioner of Social Security,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, BALDOCK, and BRISCOE, Circuit Judges.
                  _________________________________

      Katrina Hays appeals the district court’s order denying her motion for attorney

fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(A). In a

prior appeal this court remanded Ms. Hays’s claims for Social Security disability

benefits and supplemental security income benefits. Hays v. Colvin, 630 F. App’x

749 (10th Cir. 2015). In this case, the district court determined that Ms. Hays was

not entitled to attorney fees because the Commissioner’s position was “substantially

      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
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 This order and judgment is not binding precedent,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.
justified,” 28 U.S.C. § 2142(d)(1)(A). We exercise jurisdiction under 28 U.S.C.

§ 1291 and affirm.

      I.     Background

      Ms. Hays applied for disability benefits in November 2006. Eventually, her

case was heard by an administrative law judge (ALJ). Ms. Hays submitted a report

by Dipesh Amin, M.D., an examining physician, that primarily discussed her

complaints of right hand and wrist pain. The report also addressed Ms. Hays’s knee

problems, stating in the narrative section that her ability to stand was limited to

approximately four hours a day with appropriate breaks. The report included a

checklist on which Dr. Amin checked one box indicating Ms. Hays could stand for

four hours “at one time without interruption,” and another indicating that she could

walk for four hours “at one time without interruption.” See Hays, 630 F. App’x

at 752 (internal quotation marks omitted).

      At the administrative hearing, the ALJ posed a hypothetical question to a

vocational expert (VE) about an individual who could stand or walk with normal

breaks for a total of six hours in an eight-hour workday. The VE responded that such

a person could perform light work and identified several jobs the person could

perform. This standing/walking limitation comports with the general requirements

for light work. See SSR 83-10, 

, at *6. The ALJ concluded that

Ms. Hays had the residual functional capacity (RFC) to perform light work with no

additional standing/walking limitations. Accordingly, the ALJ found Ms. Hays not

disabled.

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      On appeal to this court, we noted that the ALJ referred briefly to Dr. Amin’s

assessment without assigning an explicit weight to it and discussed the assessment

only as it related to Ms. Hays’s right-extremity impairment. We held that the ALJ

failed to adequately address Dr. Amin’s standing and walking restrictions. We

concluded that Dr. Amin’s report pertaining to Ms. Hays’s ability to stand and walk

was inconsistent with both the ALJ’s RFC determination and the hypothetical posed

to the VE. Therefore, we remanded for clarification of the standing and walking

restrictions in Dr. Amin’s report. We, however, rejected Ms. Hays’s other appellate

arguments asserting that the ALJ improperly evaluated other medical evidence.

      Ms. Hays then filed a motion for EAJA attorney fees. The district court

acknowledged this court’s order and judgment but denied the motion, holding, (1) a

reasonable person could interpret Dr. Amin’s opinion that Ms. Hays could stand four

hours and walk four hours as consistent with the ALJ’s finding that she could stand

and walk a combined six hours, so the ALJ was not required to expressly address

Dr. Amin’s opinion; (2) the remand order did not imply a lack of substantial

justification, but rather the remand was “for ‘clarification’ regarding the weight given

to Dr. Amin’s opinions with respect to standing and walking,” Aplt. App. Vol. 2, at

320; (3) this court had rejected most of Ms. Hays’s appellate arguments; and (4) the

remand was for further administrative proceedings, rather than for an outright award

of benefits. Ms. Hays now appeals the district court’s ruling, asserting error in all of

the court’s grounds for denying her motion for attorney fees.



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       II.     Standards of Review

       To be entitled to recover attorney fees from the government under the EAJA, a

plaintiff must establish (1) that she is a prevailing party, (2) the Commissioner’s

position was without substantial justification, and (3) there are no special

circumstances that warrant denying relief. 28 U.S.C. § 2142(d)(1)(A); Hackett v.

Barnhart, 

, 1172 (10th Cir. 2007). The only dispute is whether the

Commissioner’s decision to deny benefits and the Commissioner’s litigating position

were substantially justified. See § 2412(d)(2)(D) (providing that the relevant inquiry

pertains to the government’s position before the agency, as well as in the civil

litigation).

       “[T]he Commissioner had the burden of proof to show that her position was

substantially justified. The test for substantial justification in this circuit is one of

reasonableness in law and fact.” 

(citation and internal

quotation marks omitted). In other words, the Commissioner’s position must be

“justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood,

, 565 (1988).

       “We review the district court’s determination that the Commissioner’s position

was substantially justified for an abuse of discretion. An abuse of discretion occurs

when the district court bases its ruling on an erroneous conclusion of law or relies on

clearly erroneous fact findings.” 

(citation and internal

quotation marks omitted). It is the plaintiff’s burden to show that the district court’s



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judgment was an abuse of discretion. Madron v. Astrue, 

, 1257

(10th Cir. 2011).

      III.   Analysis

      Ms. Hays first argues that the Commissioner’s litigating position in the merits

appeal was not substantially justified in law because it was impermissible post hoc

rationale for the ALJ’s decision. See Grogan v. Barnhart, 

, 1263

(10th Cir. 2005) (rejecting “post-hoc rationalizations to explain the Commissioner’s

treatment of evidence when that treatment is not apparent from the Commissioner’s

decision itself”). The Commissioner argued that Dr. Amin’s opinion was generally

consistent with the ALJ’s RFC finding and thus any error was harmless. See

Keyes-Zachary v. Astrue, 

, 1163 (10th Cir. 2012) (holding alleged error

was harmless because the ALJ’s RFC determination was “generally consistent” with

the physician’s findings); see also Mays v. Colvin, 

, 578-79 (10th Cir.

2014) (“[A]n ALJ’s failure to weigh a medical opinion involves harmless error if

there is no inconsistency between the opinion and the ALJ’s assessment of [RFC].”).

The Commissioner characterized Dr. Amin’s opinion as saying Ms. Hays could walk

for four hours and stand for four hours a day, but “did not limit [her] to stand or walk

for four hours,” Aplt. App. Vol. 1, at 74. Thus, she asserted, Dr. Amin’s opinion was

generally consistent with the ALJ’s finding and a remand was not required for an

express ALJ analysis.

      We reject Ms. Hays’s argument that the Commissioner provided only post hoc

rationale. This is not a case in which the Commissioner supplied new reasons for

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supporting the ALJ’s RFC finding. Cf. Haga v. Astrue, 

, 1207-08

(10th Cir. 2007) (rejecting as post hoc rationale the Commissioner’s reasons that

would support the ALJ’s finding but that were “not apparent from the ALJ’s decision

itself”); 

(holding where ALJ omitted discussion of

evidence, district court may not provide an explanation for the omission). Rather, the

Commissioner argued that the missing findings were not only consistent with the

other medical evidence, but were apparent from the ALJ’s decision. To the extent

Ms. Hays suggests the fact that her case was remanded for further proceedings

compels the conclusion that the Commissioner’s position was not substantially

justified, we reject the suggestion. “The government’s position can be substantially

justified, we have repeatedly held, even though it is not correct.” 

(brackets and internal quotation marks omitted). In addition, the merits panel

did not reverse and remand on the basis of post hoc justification.

      Ms. Hays also argues the district court abused its discretion in holding that the

Commissioner’s position was justified in fact. The district court found: “a

reasonable person could believe that Dr. Amin’s opinion that Ms. Hays could stand

four hours and walk four hours was consistent with the ALJ’s determination that she

could stand and walk a combined six hours.” Aplt. App. Vol. 2, at 319. Ms. Hays

contests this finding because, as the merits panel held, such an interpretation did not

resolve the inconsistency with the hypothetical posed to the VE, which allowed up to

six hours of either standing or walking, without limiting either activity to four hours.

She points out that this interpretation was inconsistent with the ALJ’s RFC findings

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and was thus discredited by the merits panel. But Ms. Hays’s argument conflates the

merits review—applying a substantial evidence standard—and the substantially

justified inquiry—asking whether the Commissioner’s “litigating position was

reasonable even if wrong,” 

. Again, an unsuccessful

litigating position does not necessarily fail the test of substantially justified. See 

Hays asserts that the district court abused its discretion by

considering that the merits panel rejected four of her five appellate arguments, did

not imply a lack of substantial justification, and remanded for further proceedings

instead of awarding benefits. While we agree that none of these factors directs a

denial of EAJA attorney fees, the court was within its discretion to consider them.

       Ms. Hays relies on Hackett to argue that the district court improperly

considered the number of winning arguments the Commissioner raised in the merits

appeal. See 

n.1 (rejecting Commissioner’s argument that

she had prevailed on five of the six merits issues because the winning issues were

“completely unrelated” to the issue warranting remand). But Hackett did not

preclude considering the parties’ success on their merits arguments. Indeed, Hackett

recognized that courts must treat the case as “an inclusive whole, rather than as

atomized line-items.” 

marks omitted).

       Moreover, the district court did not abuse its discretion by considering that the

merits panel remanded for clarification of Dr. Amin’s opinion, thereby not indicating

a lack of substantial justification. As the court recognized, “a ‘fully justified position

may be poorly explained, and remand may be the most appropriate vehicle for

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elucidating that position.’” Aplt. App. Vol. 2, at 320 (quoting DeLong v. Comm’r of

Soc. Sec. Admin., 

, 727 (6th Cir. 2014)); see 

(in upholding denial of EAJA attorney fees, appellate court afforded considerable

weight to the district court’s observation that even though a remand was warranted,

the record did not strongly establish claimant’s entitlement to benefits).

      IV.    Conclusion

      We conclude that the district court did not abuse its discretion in denying

Ms. Hays’s EAJA motion for attorney fees. The judgment is affirmed.


                                            Entered for the Court


                                            Mary Beck Briscoe
                                            Circuit Judge




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