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

                            FOR THE TENTH CIRCUIT                      February 12, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
GORDON L. GEORGE,

             Plaintiff-Appellant,

v.                                                        No. 12-6143
                                                   (D.C. No. 5:06-CV-00960-C)
MICHAEL J. ASTRUE, Commissioner,                          (W.D. Okla.)
Social Security Administration,

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before KELLY, McKAY, and O’BRIEN, Circuit Judges.


      This court remanded Gordon L. George’s claims for disability and

supplemental security income benefits, holding that in light of the record evidence of

treatment for depression and anxiety, the ALJ erred in failing to make findings

regarding mental impairments. George v. Astrue, 451 F. App’x 767, 768-69


*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
(10th Cir. 2011). Mr. George then moved for attorney fees under the Equal Access to

Justice Act (EAJA), 28 U.S.C. § 2412. The district court denied the application, and

Mr. George appeals.

      The EAJA entitles a prevailing party to recover reasonable attorney fees from

the government “unless the court finds that the position of the United States was

substantially justified or that special circumstances make an award unjust.” Id.

§ 2412(d)(1)(A). The only dispute in this appeal is whether the Commissioner’s

position was substantially justified. To be substantially justified, the government’s

position must be “‘justified in substance or in the main’—that is, justified to a degree

that could satisfy a reasonable person.” Pierce v. Underwood, 

, 565

(1988). In this circuit, this test is expressed as “reasonableness in law and fact.”

Hackett v. Barnhart, 

, 1172 (10th Cir. 2007). “As defined by EAJA,

‘“position of the United States” means, in addition to the position taken by the United

States in the civil action, the action or failure to act by the agency upon which the

civil action is based.’” Id. (quoting 28 U.S.C. § 2412(d)(2)(D)). The general rule is

that EAJA fees “should be awarded where the government’s underlying action was

unreasonable even if the government advanced a reasonable litigation position.” Id.

at 1174 (internal quotation marks omitted).

      We review the district court’s decision for abuse of discretion. Pierce,

487 U.S. at 559. “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.”


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Hackett, 475 F.3d at 1172 (internal quotation marks omitted). “Our appellate role is

limited to ensuring that the district court’s discretionary decision did not fall beyond

the bounds of the rationally available choices before the district court given the facts

and the applicable law in the case at hand.” Madron v. Astrue, 

, 1257

(10th Cir. 2011) (brackets and internal quotation marks omitted).

      In the merits case, the Commissioner argued in the district court that the ALJ

was not required to discuss every piece of evidence, Mr. George had not pointed to

any medical evidence showing that his mental impairments caused any particular

work-related limitations, and Mr. George’s attorney had not asked the vocational

expert (VE) about any limitations from mental impairments. The magistrate judge

recommended that the district court affirm the Commissioner’s decision to award

only a closed period of benefits for certain physical impairments because Mr. George

had not discussed how his mental impairments affected his ability to work. Citing

Armijo v. Astrue, 385 F. App’x 789, 791-93 (10th Cir. 2010), the magistrate judge

stated that even if it was error for the ALJ not to use the required “special technique”

for mental impairments, it was harmless because Mr. George had not identified

mental impairments as a basis of disability and there was no record evidence of any

functional limitations attributable to the mental impairments. The district court

adopted the magistrate judge’s report and recommendation.

      In Mr. George’s appeal, the Commissioner again argued that Mr. George had

not identified any medical evidence establishing limitations from any mental


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impairments and Mr. George’s attorney had not asked the VE any questions

regarding limitations from mental impairments. This court, however, opined:

      The record shows Mr. George has a substantial documented and
      diagnosed history of depression and anxiety and has been repeatedly
      prescribed medications commonly used to treat those conditions. Yet,
      despite this evidence suggesting a medically determinable mental
      impairment, the ALJ made no mention of it. Neither did the ALJ apply
      the so-called “special technique” specified by regulation for evaluating
      the severity of a mental impairment. Nor did he provide in the RFC for
      any work-related limitations due to mental impairments (or, conversely,
      state that there were none). This was error as a matter of law.

George, 451 F. App’x at 768 (citations omitted). This court then rejected the district

court’s reliance on Armijo. Id. at 768-69. In Armijo, “the ALJ’s factual finding was

supported by substantial evidence, and his failure to use one particular method for

arriving at that finding instead of another was harmless because the result wouldn’t

(couldn’t) change as a matter of law.” Id. at 768. But in George,

      by contrast, the ALJ has not made any factual findings—one way or the
      other—about the existence, severity, or functional limitations, if any,
      imposed by Mr. George’s mental condition. It’s entirely possible the
      ALJ on remand will find Mr. George’s mental health issues have no
      impact on his ability to work. But the problem here is that—unlike in
      Armijo—we just don’t know what the ALJ thinks on that score because
      he hasn’t made any factual findings about it. Neither may we, as a
      reviewing court, guess at what might’ve been in the ALJ’s head when it
      comes to the facts. He’s the fact-finder, not us.

Id. at 768-69.

      In denying Mr. George’s EAJA motion, the district court held that the

Commissioner’s litigation position was substantially justified because (1) the district

court had accepted the Commissioner’s argument that there was no link between any


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mental impairments and Mr. George’s ability to work, and (2) Mr. George was

represented by counsel, and “the ALJ was entitled to rely on that counsel to present

the relevant evidence effectively to present Plaintiff’s case,” Aplt. App., Vol. 1 at

168.

       Mr. George argues that the denial of his fee motion is an abuse of discretion

because the ALJ committed a legal error, and a legal error is not harmless and

“cannot be substantially justified.” Aplt. Br. at 20. We disagree. In appropriate

circumstances, we have held that legal errors in Social Security proceedings are

harmless. See, e.g., Keyes-Zachary v. Astrue, 

, 1163, 1165 (10th Cir.

2012); Poppa v. Astrue, 

, 1173 (10th Cir. 2009); Allen v. Barnhart,

, 1145 (10th Cir. 2004). Additionally, we have found arguments

defending the agency’s legal error to be substantially justified, even if not correct.

See, e.g., Thomas v. Astrue, 475 F. App’x 296, 298 (10th Cir. 2012); Pritchett v.

Astrue, 287 F. App’x 680, 682-83 (10th Cir. 2008).

       Mr. George further asserts that counsel’s presentation of the mental

impairments during the hearing was sufficient to put the ALJ on notice that such

impairments were an issue. We agree that our decision in the merits case was based

not on a lack of evidence, but on the ALJ’s failure to address the evidence that was in

the record. Nevertheless, counsel’s performance is not entirely irrelevant to whether

the Commissioner’s arguments were substantially justified. Cf. Pritchett,

287 F. App’x at 682 (noting counsel’s “most casual” presentation of the critical issue


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in the litigation). But given that this court long ago recognized that a diagnosis of

depression does not necessarily establish disability, Bernal v. Bowen, 

,

301 (10th Cir. 1988), and that there was little record evidence of functional

limitations resulting from Mr. George’s impairments, see George, 451 F. App’x at

768-69 (“It’s entirely possible the ALJ on remand will find Mr. George’s mental

health issues have no impact on his ability to work.” (emphasis omitted)), the

Commissioner’s merits arguments were not unreasonable.

      Because the district court’s denial of EAJA fees did not fall beyond the range

of rationally available choices before it, its judgment is affirmed.


                                                Entered for the Court


                                                Monroe G. McKay
                                                Circuit Judge




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