                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  December 29, 2011
                            FOR THE TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

    KATHRYN L. JOHNS,

                Plaintiff-Appellant,

    v.                                                    No. 11-4099
                                                (D.C. No. 1:09-CV-00104-BCW)
    MICHAEL J. ASTRUE, in his                              (D. Utah)
    capacity as Commissioner of the
    Social Security Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before O’BRIEN and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.



         Kathryn Johns appeals the district court’s denial of her motion for

attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A)

(EAJA), which followed the court’s remand to the Commissioner of Ms. Johns’s




*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
claims for Social Security disability benefits. Exercising jurisdiction under

28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm.

                                   Background 1

      In denying Ms. Johns’s application for disability benefits, the

administrative law judge (ALJ) concluded that her diagnosed mental impairments

were not severe apart from alcohol abuse. Before the district court, Ms. Johns

argued that the ALJ had failed to apply the correct analysis in assessing her

alcoholism. Specifically, the ALJ did not first find that Ms. Johns was disabled,

and only then determine whether she would still be disabled if she stopped using

alcohol. See Drapeau v. Massanari, 255 F.3d 1211, 1214 (10th Cir. 2001). The

government admitted that the ALJ did not follow the specified procedure, but

argued that the error was harmless because the dispositive question (whether

Ms. Johns would be disabled if she stopped using alcohol) was the same. While

stating “that the Government’s position does have a certain allure to it because it



1
       Ms. Johns’s appellate appendix is not “sufficient for considering and
deciding the issues on appeal,” 10th Cir. R. 30.1(A)(1), because it omits integral
documents such as the parties’ briefs regarding the merits, not to mention her
EAJA fee motion and the Commissioner’s response. Further, those documents are
sealed in the district court. Rather than affirming this appeal based on an
inadequate appendix, see Burnett v. Sw. Bell Tel., L.P., 555 F.3d 906, 908-10
(10th Cir. 2009), however, we have relied on the district court’s descriptions of
the parties’ positions and the arguments before it. Counsel is cautioned that “an
appellant who provides an inadequate record does so at his peril.” Id. at 908
(alteration and quotation omitted); see also 10th Cir. R. 30.1(A)(3) (“The court
need not remedy any failure of counsel to provide an adequate appendix.”).

                                        -2-
is probable that on remand the end result will be the same,” the district court held

that Drapeau was controlling. Aplt. App. at 27. Accordingly, it remanded

Ms. Johns’s claims for further proceedings before the Commissioner.

      Ms. Johns then moved for fees under the EAJA. In response, the

government argued that an EAJA fee award was inappropriate because the

government’s harmless-error position was substantially justified. The district

court concluded that it was reasonable for the government to advocate for

applying the harmless-error doctrine because (1) the court had already

acknowledged that the argument had “a certain allure to it” given the evidence in

the record supporting the ALJ’s decision, id. at 33; and (2) the harmless-error

doctrine has been applied in Social Security cases, and the state of the doctrine

with regard to alcohol disability cases was unclear. Accordingly, the district

court concluded that the government’s position was substantially justified and

denied Ms. Johns’s motion for fees.

                                      Analysis

      The EAJA provides that in civil actions, a party who prevails against the

United States is entitled to an award of attorney’s fees “unless the court finds that

the position of the United States was substantially justified or that special

circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). The only

dispute in this appeal is whether the Commissioner’s position was substantially

justified. Showing substantial justification (e.g., reasonableness in law and fact)

                                         -3-
is the Commissioner’s burden. Hackett v. Barnhart, 475 F.3d 1166, 1172

(10th Cir. 2007). “[T]he government’s position must be ‘justified to a degree that

could satisfy a reasonable person[,]’” and it “‘can be justified even though it is

not correct.’” Id. (quoting Pierce v. Underwood, 487 U.S. 552, 565, 566 n.2

(1988)). We review a district court’s denial of an EAJA fee award for abuse of

discretion. Madron v. Astrue, 646 F.3d 1255, 1257 (10th Cir. 2011). “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.

(alteration and quotation omitted)

      Ms. Johns argues that the Commissioner’s position was not substantially

justified because, regardless of the Commissioner’s litigating position, the ALJ

was unreasonable in failing to apply the proper analytical procedure to her

alcoholism. She is correct that we must consider the Commissioner’s position

both in the agency and in the district court. See 28 U.S.C. § 2412(d)(1)(B),

(d)(2)(D); Hackett, 475 F.3d at 1172-73. Further, it is true that the ALJ failed to

apply the correct legal standard in the benefits analysis, and “EAJA fees generally

should be awarded where the government’s underlying action was unreasonable

even if the government advanced a reasonable litigation position,” Hackett,

475 F.3d at 1174 (quotation omitted). Nevertheless, we cannot conclude that the

district court abused its discretion in denying an award of EAJA fees.

                                          -4-
      This court has recognized that a harmless-error analysis may be appropriate

in Social Security cases. See Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir.

2004) (stating that harmless error may apply “where, based on material the ALJ

did at least consider (just not properly), we could confidently say that no

reasonable administrative factfinder, following the correct analysis, could have

resolved the factual matter any other way”). In Hackett, the court held that Allen

was inapplicable because the Commissioner was not supplying a missing

dispositive finding, but instead was presenting an entirely new legal theory on

appeal. 475 F.3d at 1175. Here, in contrast, it appears that the Commissioner

hewed more closely to Allen, arguing that the ALJ considered Ms. Johns’s

alcoholism, just not properly, and that the ALJ ultimately arrived at the

conclusion required by the evidence. Further, it appears that the district court

believed that application of harmless error in this case was a close call. Under

these circumstances, the district court did not cross the bounds of the rationally

available choices available to it when it concluded that the Commissioner’s

position was substantially justified.

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     Monroe G. McKay
                                                     Circuit Judge

                                         -5-
