F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 4 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    AURORA L. CHESTER,

                Plaintiff-Appellant,

    v.                                                    No. 00-7021
                                                    (D.C. No. 97-CV-119-S)
    KENNETH S. APFEL, Commissioner,                       (E.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before BALDOCK, ANDERSON,              and HENRY , 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      This order and judgment is not binding precedent, except under the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 case began with plaintiff Aurora Chester’s application for disability

and supplemental security income benefits. The Commissioner denied her

application, plaintiff sought review of the denial, and the district court affirmed.

This court then reversed the denial of benefits because of the administrative law

judge’s (ALJ) legal errors and remanded to the Commissioner for further

proceedings. Because plaintiff was the prevailing party in that civil action, she

filed a motion in the district court requesting attorney fees and costs pursuant to

the Equal Access to Justice Act (EAJA).      See 28 U.S.C. § 2412(d)(1)(A). Under

the EAJA, the prevailing party in an action brought by or against the United

States is entitled to fees, other expenses, and costs “unless the court finds that the

position of the United States was substantially justified or that special

circumstances make an award unjust.”      

court denied the motion

because it determined that the Commissioner’s position was substantially

justified. Because we conclude that the district court abused its discretion in

denying the motion, we reverse and remand.      See Pierce v. Underwood , 

, 559, 563 (1988).

      In reaching our conclusion, we begin with the underlying proposition that it

is the Commissioner’s burden to show that his position was substantially justified.

Hadden v. Bowen , 

, 1267 (10th Cir. 1988). The “position” that

must be substantially justified includes not only the Commissioner’s position in


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the civil litigation, but also the agency’s action or failure to act. 28 U.S.C.

§ 2412(d)(2)(D); see also Hadden , 851 F.2d at 1267. And finally, the

Commissioner’s position is substantially justified if it is “justified to a degree that

could satisfy a reasonable person.”     Pierce , 487 U.S. at 565. Stated differently,

his position must have a “reasonable basis both in law and fact.”      

       At the agency level, the Commissioner’s position is found in the ALJ’s

decision that plaintiff was not disabled (and, therefore, not entitled to benefits)

because her physical and mental limitations did not prohibit her from performing

her past relevant work. Plaintiff appealed that decision to the district court,

arguing, among other things, that the ALJ applied the wrong legal standard in

failing to properly develop the vocational record. Specifically, she argued that

the ALJ committed reversible legal error when he failed to establish the mental

demands of her past work and compare them to her mental limitations in finding

that she could perform her past work.    1
                                             The district court disagreed and held that

the ALJ applied the proper legal standards, without explaining exactly how the

ALJ’s analysis satisfied his obligation. On appeal, we reversed, holding that the



1
       Plaintiff presented several other arguments of ALJ error on appeal, but
since the failure to develop the vocational record was, by itself, an obvious legal
error for which the Commissioner offered no substantial justification, we need not
address the other points of alleged error.

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ALJ made a legal error in concluding plaintiff could perform her past work.

Consequently, in opposing the EAJA motion, the Commissioner must show not

only that his litigation position in defending the ALJ’s legal error was

substantially justified, but also that the initial legal error by the agency was

substantially justified.

       Attempting to satisfy his burden to show that his position was substantially

justified, in his opposition to the EAJA motion the Commissioner pointed to only

one fact: that the district court found no legal error and affirmed the denial of

benefits. The Commissioner argued that “the fact that the [he] did prevail at the

district court level more than adequately supports the proposition that the

government’s position was substantially justified.” R. Vol. I at 43. Similarly, on

appeal, the Commissioner relies solely on the district court’s favorable decision

as evidence that his position was substantially justified. He states that the district

court’s finding that reasonable minds could differ as to whether the ALJ

committed legal error is, itself, sufficient to establish that a reasonable person

would see the government’s position as correct and, thus, substantially justified.

Appellee’s Br. at 8. However, the fact that one other court agreed with the

Commissioner, standing alone, does not establish that his position was

substantially justified.   Pierce , 487 U.S. at 569; Hadden , 851 F.2d at 1267.

Because he offered no other argument of substantial justification, he failed to


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carry his burden.   See Hadden , 851 F.2d at 1267 (“The government’s success or

failure on the merits at each level may be evidence of whether its position was

substantially justified, but that success or failure alone is not determinative of the

issue.”).

       More important than the Commissioner’s technical failure to carry his

burden, however, is the fact that the record simply does not reveal a reasonable

basis for either the ALJ’s legal error, or the Commissioner’s litigation position in

arguing there was no error. The law is clear, as it was at the time the ALJ made

his decision, that the ALJ had a duty to develop the record by establishing the

mental demands of plaintiff’s past work and comparing them with her mental

limitations before he could conclude that plaintiff could perform her past work.

Henrie v. United States Dep’t of Health & Human Servs.     , 

, 360-61

(10th Cir. 1993); Winfrey v. Chater , 

, 1023-26 (10th Cir. 1996). As

we held on appeal, the ALJ simply did not fulfill that duty. He made specific

findings regarding plaintiff’s mental limitations (that she was limited to

performing jobs in low-stress, nonpublic environments which involved only

simple and repetitive tasks with limited co-worker contact), but he completely

failed to establish the mental demands of her past work, and it follows that he

also made no attempt to compare the mental demands of the job with her mental

limitations. See Chester v. Apfel , No. 98-7106, 

, at **2-3 (10th


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Cir. June 4, 1999). This was a glaring legal error, and the record reveals no

reasonable legal basis for the ALJ’s failure to fulfill his obligation to develop the

record by making the required findings. As a result, the Commissioner can not

show that his position was substantially justified, either in making the initial legal

error or in arguing in the ensuing litigation that there was no error.

      In sum, we conclude that the district court abused its discretion in denying

the EAJA motion for two reasons. First, the Commissioner bears the burden of

showing that his position was substantially justified, and his sole argument to that

end–that the district court agreed with his position when it affirmed the agency

action–does not, by itself, establish substantial justification. More importantly,

the record reveals no reasonable basis for either the ALJ’s obvious legal error in

failing to develop the vocational record in the first instance, or for the

Commissioner’s litigation position in arguing that there was no error.

Consequently, we REVERSE the district court’s denial of plaintiff’s EAJA

motion for fees and costs, and we REMAND for proceedings consistent with this

order and judgment.



                                                      Entered for the Court


                                                      Stephen H. Anderson
                                                      Circuit Judge


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