F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 11 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ELGIN L. HARTTER,

                Plaintiff-Appellant,

    v.                                                   No. 99-3095
                                                   (D.C. No. 95-4184-RDR)
    KENNETH S. APFEL,                                      (D. Kan.)
    COMMISSIONER, SOCIAL                             (

)
    SECURITY ADMINISTRATION,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before EBEL , LUCERO , and MURPHY , Circuit Judges.


         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      This order and judgment is not binding precedent, except under the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. 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.
         This appeal is taken from the district court denial of plaintiff’s renewed

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

28 U.S.C. § 2412.

         Plaintiff applied for disability benefits in November of 1993, alleging

disability from Post-Traumatic Stress Disorder (PTSD) as of January 1993.

Following a hearing, the administrative law judge (ALJ) determined plaintiff was

not disabled. This decision was upheld by the Appeals Council and became the

final decision of the Commissioner. Plaintiff then filed his complaint in district

court.

         In addition to his complaint, plaintiff filed new evidence of disability. On

review of this additional evidence, the government filed a motion to remand the

matter and secured the agreement of the Appeals Council 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 that he was entitled to an

immediate award of benefits.     See 

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 

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       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 because no final decision had

been issued on plaintiff’s claim.       See Hartter v. Chater , 

, 958 (D.

Kan. 1997). The court denied EAJA fees upon determining that the government’s

position was substantially justified.      See 

Specifically, the court

noted that

       [T]he new evidence filed by the plaintiff tipped the scales and
       required reevaluation of the Commissioner’s findings. Plaintiff’s
       counsel recognized the significance of the new evidence 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 

       On appeal, this court determined that because the district court had not

affirmed, modified or reversed the Commissioner’s decision but merely remanded

the action to the Appeals Council, plaintiff “was not a prevailing party, [and] the

district court did not have subject matter jurisdiction to consider his EAJA fee

application.”   Hartter v. Apfel , No. 97-3115, 

at **5 (10th Cir.




1
       28 U.S.C. § 2412(d)(1)(A) provides that “[e]xcept as otherwise specifically
provided for by statute, a court shall award to a prevailing party . . . fees . . .
unless the court finds that the position of the United States was substantially
justified . . . .”

                                              -3-
April 29, 1998) (unpublished order and judgment). We therefore vacated the

district court’s order denying the fee application.          See 

the district court’s remand, the ALJ had conducted a

supplemental hearing. On consideration of the evidence of record, including

evidence not available at the time of the first hearing, the ALJ determined that

plaintiff was disabled. Plaintiff was subsequently awarded 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 , 

, 1306 (D. Kan. 1999),            and proceeded to

consider the fee application under both the Social Security Act and the EAJA.

See 

Fees were awarded pursuant to § 406(b)(1) and are not at

issue here.

       The district court determined that nothing had occurred 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 decision awarding benefits was

based on some fifty-five exhibits whereas the initial decision had been based on

only twenty-nine.     See 

The court remained persuaded “that the

Commissioner’s position in this case, both legally and factually, was reasonable.”

issue before us in this appeal is whether the government’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 , 

, 1394 (10th Cir. 1995). The test for substantial

justification is one of reasonableness in law and fact.          See 

means “‘justified in substance or in the main--that is

justified to a degree that could satisfy a reasonable person.’”            Hadden v. Bowen ,

, 1267 (10th Cir. 1998) (quoting            Pierce v. Underwood , 

, 565 (1988)). The government bears the burden of establishing that its

position was substantially justified.     See 

even though not correct,

can be substantially justified “if a reasonable person 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 merits “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 

       Plaintiff’s primary argument underlying his claim that the government’s

position was not substantially justified is that in the initial denial of benefits, the

ALJ ignored the treating physician rule. That rule requires the ALJ to give


                                                 -5-
controlling weight to the treating doctor’s opinion about the nature and severity of

a claimant’s impairments if the opinion is both well supported by clinical and

diagnostic techniques and not inconsistent with other substantial evidence in the

record. See Bean v. Chater , 

, 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’ opinions unpersuasive given

plaintiff’s ability to work for approximately twenty-three years without suffering

the effects of his Vietnam experience with such severity as to prohibit work

activity, as well as inconclusive results of a Minnesota Mulitphasic Personality

Inventory assessment.   See 

2 Additional evidence submitted to the

Appeals Council did not provide a basis for changing the ALJ’s decision.    3




2
       This assessment actually listed plaintiff’s responses 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. Bradshaw lists plaintiff has
having PTSD, this report is dated after the ALJ’s decision. Moreover, although
plaintiff characterizes Dr. Bradshaw as a “treating physician,”  see Appellant’s Br.
at 15-16, this report appears to be the only contact Dr. Bradshaw had with
plaintiff.

                                           -6-
      By the time of the second decision, there was considerably more--and more

recent--medical evidence in support of awarding benefits; indeed, the decision

awarding benefits is based primarily on evidence produced after the initial

decision, e.g., reports from additional treating and examining physicians and a

new disability rating of 100% by the Veterans’ Administration. Moreover, the

Commissioner affirmatively sought the remand in view of this new evidence not

available for the ALJ’s initial consideration.

      As stated earlier, the district court determined that 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 although 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 district court did not abuse its

discretion in denying EAJA fees.




                                         -7-
     The judgment of the United States District Court for the District of Kansas

is AFFIRMED.



                                                  Entered for the Court


                                                  David M. Ebel
                                                  Circuit Judge




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