                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 March 15, 2011
                                     PUBLISH                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                     UNITED STATES COURT OF APPEALS

                          FOR THE TENTH CIRCUIT


 SUZAN L. MADRON,

              Plaintiff-Appellant,

 v.                                                      No. 10-1066

 MICHAEL J. ASTRUE,
 Commissioner of Social Security,

              Defendant-Appellee.


                                     ORDER


Before TYMKOVICH, Circuit Judge, PORFILIO, Senior Circuit Judge, and
GORSUCH, Circuit Judge.



      Appellee’s motion to publish the order and judgment filed February 4,

2011, is granted. The published opinion, filed nunc pro tunc to its original filing

date, is attached.


                                             Entered for the Court




                                             Elisabeth A. Shumaker, Clerk
                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 4, 2011
                                       PUBLISH                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                     UNITED STATES COURT OF APPEALS

                             FOR THE TENTH CIRCUIT


    SUZAN L. MADRON,

                Plaintiff-Appellant,
    v.
                                                        No. 10-1066
    MICHAEL J. ASTRUE,
    Commissioner of Social Security,

                Defendant-Appellee.


                   Appeal from the United States District Court
                           for the District of Colorado
                        (D.C. No. 1:05-CV-00869-WDM)


Submitted on the briefs: *

Gerald A. Harley, Harley Law Offices, Littleton, Colorado, for Plaintiff-
Appellant.

David M. Gaouette, United States Attorney, Denver, Colorado, and Alexess D.
Rea, Special Assistant United States Attorney, and Donna L. Calvert, Acting
Regional Chief Counsel, Social Security Administration, Office of the General
Counsel, Region VIII, Denver, Colorado, for Defendant-Appellee.




*
  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.
Before TYMKOVICH, Circuit Judge, PORFILIO, Senior Circuit Judge, and
GORSUCH, Circuit Judge.


GORSUCH, Circuit Judge.



      Citing back pain and respiratory problems, Suzan Madron alleged she was

unable to work and applied for disability benefits. After her application was

denied, she sought review, unsuccessfully, first before an administrative law

judge (“ALJ”), and then before the district court. Ms. Madron fared better on

appeal in this court, however; we agreed with her that the ALJ’s decision denying

benefits was defective in two respects. See Madron v. Astrue, 311 F. App’x 170

(10th Cir. 2009). First, we held the ALJ’s credibility determination regarding Ms.

Madron’s subjective pain testimony wasn’t supported by substantial evidence. Id.

at 181. Second, given the ALJ’s finding that Ms. Madron possessed a reading

level of 1, and testimony that her previous employment required a reading level of

2, we also held the ALJ was wrong to conclude that Ms. Madron’s old job was

among the jobs available to her post-injury. Id. at 181-82. In light of all this, we

remanded the case for an immediate award of benefits.

      After prevailing in her underlying disability claim, Ms. Madron sought to

recoup her attorneys’ fees and expenses under the Equal Access to Justice Act

(“EAJA”), 28 U.S.C. § 2412. The district court denied Ms. Madron’s EAJA

application, however, holding that the United States had established that its

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position in the underlying litigation was “substantially justified.” See 28 U.S.C.

§ 2412(d)(1)(A) (instructing that the court shall award fees and expenses to the

prevailing parties unless, among other things, “the court finds that the position of

the United States was substantially justified”). Now before us again, Ms. Madron

asks us to reverse the district court’s ruling that the government’s position was

substantially justified.

      We may do so only if we can say that the district court abused its discretion

in reaching the determination it did — something that occurs “when the district

court bases its ruling on an erroneous conclusion of law or relies on clearly

erroneous fact findings.” Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir.

2007). In conducting our inquiry under this standard of review, it’s irrelevant

how we, as an initial matter, might have ruled on Ms. Madron’s EAJA

application. Of necessity, the abuse of discretion standard of review “implies a

degree of discretion invested” in the district court, not in this court, to issue a

decision “based upon what is fair in the circumstances and guided by the rules

and principles of law.” Valley Forge Ins. Co. v. Health Care Mgmt., 616 F.3d

1086, 1096 (10th Cir. 2010) (internal quotation and alteration 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.” Id.




                                           -3-
(internal quotation omitted). And, of course, it is the appellant’s obligation to

shoulder the burden of showing an error of this magnitude has occurred.

      This Ms. Madron says she can do. In her view, the district court’s

judgment — that the government’s litigation position was substantially justified

— has to be an abuse of discretion. It has to be, Ms. Madron insists, because the

government’s position was rejected by this court in her merits appeal. As she

puts it, the “Law of the Case” precludes the government from arguing the

reasonableness of its litigation efforts; it follows inexorably from this court’s

conclusion that the ALJ’s decision lacked substantial evidence that the

government’s efforts to defend the decision lacked substantial justification.

      We reject this argument because it conflates two different questions. When

we review the merits of a denial of benefits, as we did in Ms. Madron’s previous

appeal, we review for the presence or absence of substantial evidence to support

the administrative decision. See, e.g., Frantz v. Astrue, 509 F.3d 1299, 1300

(10th Cir. 2007); Madron, 311 F. App’x at 175. When a district court reviews an

EAJA application, however, it considers (among other things) whether the

government’s litigating position enjoyed substantial justification in fact and law;

that is, whether its litigating position was reasonable even if wrong. See Gatson

v. Bowen, 854 F.2d 379, 380 (10th Cir. 1988). “The government’s position can be

[substantially] justified,” we have repeatedly held, “even though it is not correct.”

Hackett, 475 F.3d at 1172 (internal quotation marks omitted). The test for

                                          -4-
substantial justification under the EAJA, the Supreme Court has added, is simply

“one of reasonableness.” Pierce v. Underwood, 487 U.S. 552, 563-64 (1988). In

other words, it does not necessarily follow from our decision vacating an

administrative decision that the government’s efforts to defend that decision

lacked substantial justification. Ms. Madron’s suggestion otherwise is simply

erroneous. Neither does Ms. Madron develop in her opening brief any other

argument for reversing the district court. Accordingly, any other basis for

reversal is waived and this court is obliged to affirm. See Headrick v. Rockwell

Int’l Corp., 24 F.3d 1272, 1277-78 (10th Cir. 1994) (White, J., sitting by

designation). AFFIRMED.




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