F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        June 12, 2007
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    TH ERESA FLO RES,

                Plaintiff-Appellant,

    v.                                                   No. 06-1150
                                                  (D.C. No. 04-cv-2148-LTB)
    M ICH AEL J. ASTRU E, *                               (D . Colo.)
    Commissioner of Social Security,

                Defendant-Appellee.



                            OR D ER AND JUDGM ENT **


Before H E N RY, B AL DOC K , and M U RPH Y, Circuit Judges.




         Theresa Flores appeals from the district court’s order denying her

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

28 U.S.C. § 2412, following an order that reversed and remanded the

Commissioner’s decision denying her application for disability insurance benefits

*
     Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for
Jo Anne B. Barnhart as the appellee in this action.
**
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
and supplemental security income. W e have jurisdiction under 28 U.S.C. § 1291

and affirm.

                                         I.

      M s. Flores’s application for benefits, which was based upon claims of

neck and back injuries, depression, and memory problems, was denied

administratively. Following a hearing, the administrative law judge (ALJ) found

at step four of the five-step sequential evaluation process that she could perform

her past relevant work as either a teacher’s aide or sales clerk and was not

disabled. W hen the Appeals Council denied her request for review, M s. Flores

appealed, and the district court reversed and remanded the case for further

proceedings.

      The district court found two errors in the A LJ’s decision. First, the court

found that the ALJ’s written decision failed “to demonstrate reliance on the

correct legal standard” in evaluating the opinions of M s. Flores’s treating

physicians. Aplt. App. at 528. In particular, the court noted that, although the

ALJ’s conclusion that the opinions were not entitled to controlling weight was

supported by substantial evidence, he failed “to provide specific, legitimate

reasons for the weight he ultimately assigned the opinions.” 

      Second, although neither M s. Flores nor her lawyer requested a consultative

examination concerning her alleged mental impairments during the administrative




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proceedings, the district court agreed with her argument on appeal that an

examination would be helpful on remand.

      Thereafter, M s. Flores filed her motion for fees under the EA JA. The

district court denied the motion, concluding that the Commissioner’s position,

although ultimately unsuccessful, was reasonable in law and fact, and was

substantially justified.

                                         II.

      Under EAJA, a fee award is required if (1) M s. Flores is a prevailing party;

(2) the position of the Commissioner was not substantially justified; and

(3) there are no special circumstances that make an award unjust. 28 U.S.C.

§ 2412(d)(1)(A ); see also Comm’r INS v. Jean, 

, 158 (1990). Having

satisfied factors one and three, the only dispute is whether the Commissioner’s

position was substantially justified.

      In addition to the position taken by the Commissioner in the district court,

“[w]hether or not the position of the [Commissioner] was substantially justified

shall be determined on the basis of the record (including the record with respect

to the action or failure to act by the agency upon which the civil action is based)

which is made in the civil action for which fees and other expenses are sought.”

28 U.S.C. § 2412(d)(1)(B). See also H ackett v. Barnhart, 

, 1172

(10th Cir. 2007).




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      The Commissioner “bears the burden of showing that [his] position was

substantially justified.” Gilbert v. Shalala, 

, 1394 (10th Cir. 1995).

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

and fact. Thus, the government’s position must be justified to a degree that could

satisfy a reasonable person. The government’s position can be justified even

though it is not correct.” 

(quotations and citations

omitted). See also Pierce v. Underwood, 

, 565 (1988) (same).

      “W e review the district court’s determination that the C ommissioner’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.” 

(quotations and citations omitted).

                                          III.

      The parties agree that the district court applied the correct legal standard in

assessing M s. Flores’s request for attorney fees under EAJA. Therefore, our

analysis is limited to consideration of whether the court abused its discretion by

way of a clearly erroneous assessment of the evidence.

      According to M s. Flores, the district court abused its discretion “by

misrepresenting or ignoring the medical record,” and “fail[ing] to adequately

discuss how [her] treating physicians’ opinions w ere contrary to the record.” A plt.

Br. at 9. W e disagree. In denying her motion for EAJA fees, the court found that

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the reason for the remand was due to the fact that the ALJ’s “order failed to

demonstrate reliance on the correct legal standard.” Aplt. A pp. at 548.

Specifically, although the ALJ discussed the treating physicians’ opinions in

detail, he failed to specifically mention the factors outlined in Watkins v.

Barnhart, 

, 1301 (10th Cir. 2003) to determine what, if any,

deference should be accorded their opinions. “The reason for the remand w as the

order’s lack of legal analysis necessary for [the court] to ascertain whether the

ALJ applied the correct legal standard by affording the treating physicians’

opinions deference in the form of the relevant factors in 20 C.F.R.

§ 404.1527(d)(2).” Aplt. App. at 551.

      M s. Flores’s argument might have merit if the A LJ had ignored or

misrepresented the medical record, but these are not the facts of this case. Instead,

the district court found “that there was ample evidence in the record to support the

ALJ’s comprehensive assessment of the treating physician’s [sic] opinions.” 

court’s conclusion that the Commissioner’s position was substantially

justified because it had a reasonable basis in law and fact was not an abuse of

discretion.

      The record reveals evidence of a test given to M s. Flores when she was

eleven-years-old that revealed an intelligence quotient of fifty-nine. However,

the record also reveals that she graduated from high school, raised a family, and

worked at least three semi-skilled jobs as an adult. Throughout the administrative

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proceedings, neither she nor her lawyer ever requested a consultative examination

of this mental impairment–instead she raised this issue for the first time on her

appeal to the district court.

         Regardless, we do not reach the merits of M s. Flores’s argument because

she has failed to provide any authority that the failure to order a consultative

examination means that the Commissioner’s position was not substantially

justified. A party’s failure to cite any authority “suggests either that there is no

authority to sustain its position or that it expects the court to do its research.”

Rapid Transit Lines, Inc. v. Wichita Developers, Inc., 

, 852 (10th Cir.

1970).

         The judgment of the district court is AFFIRMED.


                                                       Entered for the Court


                                                       Robert H. Henry
                                                       Circuit Judge




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