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

                             FOR THE TENTH CIRCUIT                            February 25, 2016
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
CYNTHIA QUINTERO,

      Plaintiff - Appellant,

v.                                                            No. 15-1111
                                                    (D.C. No. 1:12-CV-01849-WJM)
CAROLYN W. COLVIN, Acting                                      (D. Colo.)
Commissioner of the Social Security
Administration,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before GORSUCH, MATHESON, and MORITZ, Circuit Judges.
                 _________________________________

      Cynthia Quintero, a successful social-security litigant, appeals the district court’s

order denying her motion for attorney fees under the Equal Access to Justice Act (EAJA),

28 U.S.C. § 2412. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse.

                                      BACKGROUND

      Quintero applied for disability-insurance benefits and supplemental security

income payments due to a variety of impairments, including depression. An

      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
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 This order and judgment is not binding precedent,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.
administrative law judge (ALJ) concluded she wasn’t disabled, as jobs existed in the

national economy that she could perform given her age, education, work experience, and

residual functional capacity (RFC). In reaching that conclusion, the ALJ gave “little, if

any, weight” to the mental RFC assessments of examining psychologist Jose G. Vega1

because they “were prepared at the behest of [Quintero’s] counsel in anticipation of th[e]

[disability] hearing.” R., Vol. I at 15. Additionally, the ALJ downplayed the weight of

Dr. Vega’s opinion because he was an examining rather than a treating physician.

       Quintero sought review in the district court, complaining the ALJ had improperly

discounted Dr. Vega’s opinion. She specifically challenged the ALJ’s decision

discounting Dr. Vega’s opinion because he examined Quintero at the request of her

counsel and because of his status as an examining physician. In doing so, she relied on

McGoffin v. Barnhart, 288 F.3d 1248, 1253 (10th Cir. 2002) (reiterating this court’s

longstanding view that a physician’s advocacy for “his patient’s cause is not a good

reason to reject his opinion”), and Chapo v. Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012)

(noting “the facially dubious proposition that the opinion of an examining medical source

is, as such, dismissible”). In its response brief, the government didn’t address Quintero’s

interpretation or application of either McGoffin or Chapo. Instead, the government

specifically argued the ALJ had “reasonably weighed the opinion of Dr. Vega and

reasonably crafted a[n] [RFC] assessment based upon that opinion.” Aplt. App. at 55.



       1
        Dr. Vega completed a mental RFC form, opining that Quintero had moderate,
“moderate-to-marked,” or marked limitations in every category. R., Vol. II at
468-69.
                                             2
The government did not seek to excuse any error as to Dr. Vega’s opinion on the basis of

harmlessness.

       The district court agreed with Quintero insofar as the ALJ had discounted

Dr. Vega’s opinion because it was prepared at the request of her counsel. See id. at 152

(“[T]he regulations do not contemplate discounting opinions solely because they were

prepared for advocacy purposes; rather, the decision to discount an opinion must result

from weighing the factors described in the regulations.”). But the district court found the

error was harmless. To the extent the ALJ discounted Dr. Vega’s opinion because he

“was not a treating psychologist,” R., Vol. I at 15, the district court stated simply that the

ALJ had properly declined to give his opinion “controlling [weight], as he was not a

treating source,” Aplt. App. at 151.2

       On appeal to this court, Quintero again raised McGoffin and Chapo. This time, the

government specifically addressed McGoffin in its response brief, suggesting that this

court’s renunciation in McGoffin of the practice of discounting physician opinions

prepared at the request of counsel applied only to treating physicians and not to

examining physicians like Dr. Vega. See id. at 193. The government argued:

       Unlike the physician in McGoffin, Dr. Vega was not Quintero’s family
       doctor—in fact, Dr. Vega did not provide treatment and Quintero was not
       receiving any mental health treatment at the time she saw Dr. Vega.
       Rather, as the ALJ correctly observed, Quintero saw Dr. Vega only in
       connection with her disability claim AND application. Thus, the rationale


       2
        But Quintero had not argued Dr. Vega’s opinion was entitled to controlling
weight. Indeed, Quintero acknowledged that “[n]o examining physician’s opinion
ever deserves controlling weight.” Aplt. App. at 33. Rather, Quintero argued the
ALJ erred by giving Dr. Vega’s opinion little, if any, weight. See id. at 33-34.
                                              3
       in McGoffin that it is not unusual for a treatment team to advocate for a
       patient does not apply here.
Id. at 193-94.

       The government further suggested: “In any event, even if McGoffin did control in

this case, the fact that the ALJ noted that Dr. Vega’s opinion was prepared at the behest

of [Ms.] Quintero’s attorney in preparation for the hearing . . . would not change the

outcome of this case.” Id. at 194. As for Chapo, the government didn’t specifically

address its proscription against the outright dismissal of an examining medical source’s

opinion. But the government impliedly rejected that holding by arguing the ALJ

“properly noted that [Ms.] Quintero saw Dr. Vega on only a few occasions and did not

see him for treatment.” Id. at 193 (emphasis added).

       This court found error under both McGoffin and Chapo. Regarding McGoffin, the

panel observed that this court had “long ago rejected” the implication that “a consulting

examiner’s opinion is necessarily less trustworthy when it is sought or obtained by the

claimant.” Quintero v. Colvin, 567 F. App’x 616, 620 (10th Cir. 2014). Notably, the

panel specifically observed that “rejecting Dr. Vega’s opinion on the ground the opinion

was obtained by Quintero’s counsel fail[ed] to follow the established legal rules for

weighing medical opinions.” Id. (citing 20 C.F.R. §§ 404.1527(c) and 416.927(c)). As

for Chapo, the court stated that Dr. Vega’s status as “an examining rather than a treating

physician was not a valid reason for rejecting the opinion.” Id. The court found that

these errors, and others involving the weighing of Dr. Vega’s opinion, were not




                                             4
harmless.3 Thus, this court reversed the district court’s judgment and remanded the case

for further proceedings.

       On remand, the district court denied Quintero’s motion for attorney fees under

EAJA, prompting this appeal.

                                       DISCUSSION

       Quintero argues she is entitled to EAJA fees because the ALJ committed “very

basic errors in the application of very simple and clear rules for assessing medical

opinions.” Aplt. Opening Br. at 24 (emphasis omitted). These errors, she continues, were

significant because they provided “no basis for judicial review of her treatment of the

medical opinions.” Id. at 24-25 (emphasis omitted). Quintero further contends “[i]t was

not reasonable for the Commissioner to argue in Federal Court that the ALJ properly

discounted Dr. Vega’s opinion by considering the fact that Dr. Vega was only an

examining physician and that he was hired by Ms. Quintero’s attorney in anticipation of

the hearing.” Id. at 32.

       The government responds that its position regarding Dr. Vega’s opinion “was

reasonable in light of the relevant legal authorities and the facts of this case.” Aplee. Br.

at 19. It asserts that “during the litigation on the merits, the Commissioner never took the

position that the ALJ [had] discounted” Dr. Vega’s opinion because of his “status as an

       3
        This court determined that the ALJ also erred by (1) “assign[ing] great
weight to portions of Dr. Vega’s opinion—which [the ALJ] had previously rejected
in toto—for no other reason than their agreement with [a consultative examining
psychologist’s] opinion,” id.; (2) “provid[ing] no valid reason for choosing [the
consultative psychologist’s] opinion over Dr. Vega’s in those instances where the
opinions differed,” id. at 621; and (3) “provid[ing] [no] reason whatsoever for the
great weight . . . assigned to [the consultative psychologist’s] opinion,” id.
                                              5
examining source.” Id. at 21. Rather, the government claims, “Quintero introduced this

reading of the ALJ’s decision.” Id. Regarding the advocacy nature of Dr. Vega’s

opinion, the government contends “the Commissioner reasonably argued that the ALJ

gave other valid reasons for discounting Dr. Vega’s opinions.” Id. at 28.

       Under EAJA, a fee award is required if (1) the plaintiff is a “prevailing party”;

(2) the position of the United States was not “substantially justified”; and (3) there are no

special circumstances that make an award of fees unjust. 28 U.S.C. § 2412(d)(1)(A).

The term “position” “may encompass both the agency’s prelitigation conduct and the

[government’s] subsequent litigation positions.” Comm’r, INS v. Jean, 496 U.S. 154, 159

(1990). The only dispute in this appeal is whether the government’s position was

substantially justified.

       A position is substantially justified for EAJA purposes if it is “justified in

substance or in the main—that is, justified to a degree that could satisfy a reasonable

person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal quotation marks

omitted). Thus, a position may be substantially justified even though it is incorrect, so

long as there is “a reasonable basis in law and fact” for it. Id. at 566 n.2. A position taken

by the ALJ or government that “contravene[s] longstanding agency regulations, as well

as judicial precedent,” is not substantially justified. Stewart v. Astrue, 561 F.3d 679, 684

(7th Cir. 2009); accord Washington v. Heckler, 756 F.2d 959, 962 (3d Cir. 1985) (“When

the government’s legal position clearly offends established precedent . . . its position

cannot be said to be ‘substantially justified.’”). We review the district court’s denial of

Quintero’s EAJA motion for an abuse of discretion. See Pierce, 487 U.S. at 559.

                                              6
       We first address the ALJ’s error in discounting Dr. Vega’s opinion because he was

an examining, rather than a treating, psychologist. Chapo clearly prohibits an ALJ from

per se rejecting an examining medical source’s opinion. Chapo, 682 F.3d at 1291

(providing that an ALJ may not end the assessment of an examining physician’s opinion

by merely recognizing a “limited professional relationship with [the claimant]”). We

reject the government’s assertion that Quintero somehow “introduced this reading of the

ALJ’s decision,” Aplee. Br. at 21, thereby injecting Chapo error where none existed. To

the contrary, in the district court, Quintero properly framed the issue by (1) pointing out

that one of the ALJ’s reasons for assigning little, if any, weight to Dr. Vega’s opinion

was his status as an examining psychologist; and (2) conceding that Dr. Vega’s opinion

was not entitled to controlling weight. And when Quintero brought the issue to this

court’s attention on appeal, the panel observed that the ALJ had indeed discounted the

value of Dr. Vega’s opinion simply because he was an examining psychologist, and

found Chapo error. Quintero v. Colvin, 567 F. App’x 616, 620 (10th Cir. 2014).

       We are also unpersuaded by the government’s claim that it never argued the ALJ

could properly discount an examining source’s opinion. True, in the district court the

government didn’t contend that the ALJ was free to discount Dr. Vega’s opinion merely

because he was an examining source. But the government nevertheless maintained—

despite Quintero’s assertion of Chapo error—that the ALJ had “reasonably weighed

Dr. Vega’s opinion and reasonably determined Plaintiff’s [RFC].” Aplt. App. at 50.

That the district court didn’t find error is unpersuasive, as the district court didn’t address

Quintero’s Chapo argument. Further, on appeal to this court, the government more

                                               7
directly attempted to support the ALJ’s Chapo error by arguing—again in the face of

Quintero’s Chapo argument—that the “nature of the treatment relationship,” i.e., by an

examining rather than a treating source, was sufficient in itself to discredit Dr. Vega’s

opinion. Id. at 193; see also id. (stressing that “Quintero saw Dr. Vega on only a few

occasions and did not see him for treatment”).

       We next turn to the ALJ’s error in discounting Dr. Vega’s opinion because it was

obtained by Quintero’s counsel. More than 13 years ago, this court held in McGoffin that

a physician’s advocacy posture is an insufficient reason to reject a medical opinion. And

McGoffin based its holding, in turn, on a case decided 15 years earlier, Frey v. Bowen,

816 F.2d 508, 515 (10th Cir. 1987) (stating that a physician’s “natural[ ] advocacy [for]

his patient’s cause” is an insufficient reason to reject the physician’s opinion because it is

no more than a conclusory observation).

       Without addressing McGoffin specifically, the government impliedly suggests that

it never maintained that the ALJ properly relied on Dr. Vega’s advocacy posture as a

basis to uphold the decision. Instead, the government suggests it has maintained a

reasonable position throughout the litigation by “argu[ing] that the ALJ gave other valid

reasons for discounting Dr. Vega’s opinions.” Aplee. Br. at 28 (emphasis added). And,

as the government points out, this court has held that “[e]ven when the ALJ’s reasons

were unreasonable, EAJA fees may still be denied when the Commissioner reasonably

(even if unsuccessfully) argues in litigation that the ALJ’s errors were harmless.”

Groberg v. Astrue, 505 F. App’x 763, 765-66 (10th Cir. 2012). Quintero counters that

the government’s harmless-error defense “would not cure all of the ALJ’s errors” and

                                              8
“necessarily falls back on other invalidated reasons, or other post hoc reasons.” Aplt.

Opening Br. at 35.

       We reject the government’s “harmless error” defense for simpler reasons—i.e., the

government raised this argument late in the litigation and only as an alternative position.

Specifically, the government didn’t argue harmlessness until Quintero’s first appeal to

this court. And notably, the government asserted its harmless error argument

alternatively to its initial argument in which it urged this court to distinguish McGoffin as

only prohibiting the discounting of treating physicians’ opinions. See Aplt. App. at

193-94 (arguing that McGoffin didn’t apply to Dr. Vega because he “was not Quintero’s

family doctor” and it would be “unusual for [him] to advocate for a patient”). But

nothing in McGoffin indicates its holding reaches only to opinions offered by treating

physicians. Instead, in both McGoffin and Frey, this court reasoned that the rejection of a

physician’s opinion based on the fact that a physician is an advocate for his or her

patients is no more than a conclusory statement, contrary to the established process for

weighing medical opinions. See McGoffin, 288 F.3d at 1253; Frey, 816 F.2d at 515.

       Thus, even if the government had advanced a reasonable harmless-error argument,

its refusal to concede McGoffin error in both the district court and this court was

unreasonable. See Comm’r, INS v. Jean, 496 U.S. 154, 161-62 (1990) (stating that “the

EAJA . . . favors treating a case as an inclusive whole, rather than as atomized

line-items”); Hackett v. Barnhart, 475 F.3d 1166, 1173 n.1 (10th Cir. 2007) (rejecting the

argument that EAJA fees can be denied solely because the government prevailed on a

majority of issues).

                                              9
       In light of McGoffin and Chapo, we conclude it was unreasonable for the ALJ to

give “little, if any, weight” to Dr. Vega’s RFC opinion and for the government to defend

that position. And because the government’s position in this case regarding Dr. Vega

was not substantially justified, the district court abused its discretion in denying

Quintero’s motion for attorney fees. See 28 U.S.C. § 2412(d)(1)(A) (providing that an

attorney fee award is mandatory unless the government shows either that its position was

substantially justified or that special circumstances make an award unjust). Accordingly,

we reverse the judgment of the district court and remand this case to the district court to

award Quintero reasonable attorney fees.


                                               Entered for the Court


                                               Nancy L. Moritz
                                               Circuit Judge




                                              10
