                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-1264



JUDY CREECH,

                                              Plaintiff - Appellant,

          versus


JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL
SECURITY,

                                               Defendant - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Florence.    Henry M. Herlong, Jr., District
Judge. (4:04-cv-02484-HMH)


Submitted:   December 4, 2006             Decided:   January 18, 2007


Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


W. Daniel Mayes, MAYES LAW FIRM, Aiken, South Carolina, for
Appellant. Reginald I. Lloyd, United States Attorney, Marvin J.
Caughman, Assistant United States Attorney, Deana R. Ertl-Lombardi,
Regional Chief Counsel, Michael A. Thomas, Special Assistant United
States Attorney, Denver, Colorado, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Judy Creech appeals from the district court’s order

denying her motion for attorneys’ fees under the Equal Access to

Justice Act (EAJA), 28 U.S.C. § 2412 (2000).                          For the reasons

stated below, we affirm the district court’s order.

            Creech      filed   an   application         for   supplemental      social

security income, alleging disability caused by various medical and

mental health conditions.            Her claim was denied.                  Following a

hearing,    an    administrative      law    judge       (ALJ)       also   denied     her

application for benefits.

            Creech requested review of the ALJ’s decision and the

Appeals Council vacated the ALJ’s decision and remanded the case

for   further     proceedings.        The    order       of    the   Appeals    Council

identified two deficiencies in the ALJ’s decision: (1) the ALJ’s

decision failed to properly evaluate mental impairment according to

the applicable regulatory criteria set forth in 20 CFR § 416.920a

(2005),     and   (2)    the     ALJ’s     decision       failed       to    perform    a

function-by-function assessment in analyzing residual functional

capacity.

            After a second hearing, the ALJ issued a new decision,

again denying Creech’s application for benefits and concluding that

she is capable of medium, unskilled work.                        After the Appeals

Council denied Creech’s request for review, she appealed                         to the

district    court.        A     magistrate       judge    issued       a    Report     and


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Recommendation recommending reversal of the ALJ’s decision.                      The

magistrate’s report concluded that the ALJ failed to comply with

the Appeals Council’s order on remand.               The magistrate judge also

found that the ALJ’s analysis was inadequate in several respects:

(1) the ALJ failed to evaluate the claimant’s mental impairment in

accordance    with     the    applicable      regulations    and      document   its

evaluation as directed in the remand order, (2) the ALJ failed to

provide its rationale with references to the evidence to support

its   conclusion      regarding      the     claimant’s    residual     functional

capacity, and (3) the ALJ failed to properly specify the basis for

its assessment of the claimant’s credibility.                The district court

adopted the magistrate judge’s recommendation and entered an order

reversing     the     ALJ’s       decision     and     remanding      for   further

administrative action.*

            Creech then filed a motion in district court requesting

approximately       $4000    in   attorneys’    fees    under   the    EAJA.     The

district     court    concluded      that     the    Commissioner’s     litigation

position was substantially justified and denied the motion for

fees.     Creech noted a timely appeal.

            A claimant is entitled to an award of fees under the EAJA

if: (1) the claimant is a prevailing party; (2) the government’s

position     was     not     substantially      justified;      (3)    no   special


      *
      In her brief on appeal, Creech states that on remand, the ALJ
issued a decision granting her application for benefits without
holding a hearing. That decision is not in the record on appeal.

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circumstances make an award unjust; and (4) the claimant timely

filed his petition supported by an itemized statement.                  28 U.S.C.

§ 2412.   The government's position is “substantially justified” if

there is a “genuine dispute . . . or if reasonable people could

differ    as    to    the   appropriateness      of   the   contested    action.”

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

marks, alterations, and citations omitted).

               The government need only be “justified in substance or in

the main--that is, justified to a degree that could satisfy a

reasonable person,” id. at 565 (internal quotation marks omitted),

and the government can be substantially justified even if it loses.

Id. at 566 n.2; see also Roanoke River Basin Ass’n v. Hudson, 991

F.2d 132, 139 (4th Cir. 1993) (affirming the district court's

denial of attorneys’ fees, even though plaintiffs had prevailed on

two    issues,       because     the   government’s     overall    position    was

“substantially justified”). The court must look to the totality of

the circumstances to determine whether the government’s position is

substantially justified.           See Comm’r, INS v. Jean, 496 U.S. 154,

161-62 (1990) (“[T]he EAJA--like other fee-shifting statutes--

favors treating a case as an inclusive whole, rather than as

atomized line-items.”); Roanoke River Basin, 991 F.2d at 139 (“[W]e

look   beyond     the    issue    on   which    the   petitioner   prevailed   to

determine,       from   the    totality    of    circumstances,     whether    the




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government acted reasonably in causing the litigation or in taking

a stance during the litigation.”).

              This court reviews the district court’s determination of

whether the government is substantially justified under the EAJA

for an abuse of discretion.               Pierce, 487 U.S. at 562-63.                A

district court abuses its discretion “only if its conclusions are

based on mistaken legal principles or clearly erroneous factual

findings.”       People   for     the   Ethical       Treatment     of   Animals    v.

Doughney, 263 F.3d 359, 370 (4th Cir. 2001).

              We have thoroughly reviewed the record and find no error

in the district court’s decision.                   The district court properly

considered the applicable legal standard and did not abuse its

discretion      in   concluding    that       the    Commissioner’s      litigation

position was substantially justified.                Accordingly, we affirm the

district court’s order. We dispense with oral argument because the

facts   and    legal   contentions      are     adequately    presented      in    the

materials     before   the   court      and     argument    would    not   aid     the

decisional process.



                                                                           AFFIRMED




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