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

                             FOR THE TENTH CIRCUIT                          January 29, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
TEVA M. EVANS,

      Plaintiff - Appellant,

v.                                                          No. 15-1222
                                                   (D.C. No. 1:13-CV-01853-RBJ)
CAROLYN W. COLVIN, Acting                                    (D. Colo.)
Commissioner of Social Security,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

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

                                   I. BACKGROUND

      Teva Evans applied for supplemental security income benefits. An

administrative law judge (ALJ) denied her application, and the Appeals Council

denied review. Ms. Evans sought relief in the district court, which remanded for

further proceedings and granted Ms. Evans’s motion for an award of attorney fees

under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. On remand, the


      *
        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 This order and judgment is not binding precedent,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.
ALJ again denied her application and the Appeals Council again denied review.

Ms. Evans then obtained another remand from the district court based on errors in

two of the five issues she raised. After the second remand, Ms. Evans moved for

another EAJA award. The district court denied the motion, concluding that although

the Commissioner’s position on the remanded issues was incorrect, it was

nonetheless substantially justified. Ms. Evans appeals the denial of her request for

attorney fees based on the second remand. Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.

                                   II. DISCUSSION

                                 A. Legal Background

      Under EAJA, a party other than the United States who prevails on judicial

review of federal agency action is entitled to attorney fees and other expenses unless,

among other things, “the court finds that the position of the United States was

substantially justified.” 28 U.S.C. § 2412(d)(1)(A). The government bears the

burden to make this showing. See Hackett v. Barnhart, 475 F.3d 1166, 1172

(10th Cir. 2007).

      “The test for substantial justification in this circuit is one of reasonableness in

law and fact. Thus, the government’s position must be justified to a degree that

could satisfy a reasonable person . . . [and] can be justified even though it is not

correct.” Id. (citations and internal quotation marks omitted). The government is

more likely to meet this standard when the legal principle on which it relied is



                                          -2-
“unclear or in flux.” Martinez v. Sec’y of Health & Human Servs., 815 F.2d 1381,

1383 (10th Cir. 1987).

      “‘[P]osition 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.” 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.”

Hackett, 475 F.3d at 1174. But we have recognized an exception when the

government advances a reasonable litigation position that “cure[s] unreasonable

agency action.” Id. at 1173–74. In the social security context, we have interpreted

that exception to include “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).1

      “We review the district court’s determination that the Commissioner’s position

was substantially justified for an abuse of discretion. 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.” Hackett, 475 F.3d at 1172. “The issue of whether

the district court relied on the correct legal standard in applying the EAJA, however,

is a matter of law which we review de novo.” Hadden v. Bowen, 851 F.2d 1266,

1268 (10th Cir. 1988).

      1
        Groberg is unpublished and therefore not precedential. As with all other
unpublished cases discussed in our decision, we cite it for its persuasive value. See
Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
                                          -3-
                                      B. Analysis

      With these general principles in mind, we turn our focus to the two issues that

led to the second remand. See Hackett, 475 F.3d at 1173 n.1 (confining EAJA

analysis to the one issue (of six) on which claimant prevailed); Flores v. Shalala,

49 F.3d 562, 566 (9th Cir. 1995) (directing courts considering EAJA fee motions to

focus on issues a party has prevailed on in the district court). The first issue concerns

the ALJ’s error in including a silverware wrapper job among those Ms. Evans could

perform in the national economy. The second issue concerns the ALJ’s error of

restricting Ms. Evans to unskilled work to account for her mental impairment.

1. Jobs in the national economy

      a. ALJ

      The ALJ concluded that Ms. Evans was not disabled at step five of the

sequential evaluation process set out in 20 C.F.R. § 416.920(a)(4) because, with her

residual functional capacity, she could perform three jobs that exist in significant

numbers in the national economy: silverware wrapper, 107,450 positions nationally

and 1,867 in Colorado; document preparer, 15,296 positions nationally and 131 in

Colorado; and surveillance system monitor, 3,535 positions nationally and 141 in

Colorado.

      b. District court—first issue, second remand

      In the district court, the Commissioner conceded that it was error to include

the silverware wrapper job but argued that the error was harmless because, even



                                          -4-
excluding that job, the two remaining jobs existed in “significant numbers.”2 The

court rejected the Commissioner’s harmless error argument.

      The district court recognized that in Trimiar v. Sullivan, 966 F.2d 1326, 1330

(10th Cir. 1992), this circuit refused to draw a “bright line establishing the number of

jobs necessary to constitute a ‘significant’ number.” The district court further

explained that in Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004), we

indicated harmless error might be appropriate in cases involving larger numbers of

jobs than we considered substantial in Trimiar (650–900 in Oklahoma). Harmless

error under Allen, however, requires “the right exceptional circumstance, i.e., 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 in any other way.” Id. The district

court concluded that Ms. Evans’s case did not meet the Allen test because, after

excluding the 107,450 national silverware jobs, the number of remaining jobs in the

national economy (18,831 in the aggregate) was too small for the court to conclude

that it was a significant number as a matter of law.

      In reaching that conclusion, the court distinguished two cases the

Commissioner relied upon. The first, Raymond v. Astrue, 621 F.3d 1269, 1274 & n.2

(10th Cir. 2009), explained “that the proper focus generally must be on jobs in the


      2
         As relevant to a step-five determination, an individual is disabled only if she
is unable to perform any kind of “work which exists in the national economy,” which
“means work which exists in significant numbers either in the region where such
individual lives or in several regions of the country.” 42 U.S.C. § 1382c(a)(3)(B).
                                          -5-
national, not regional, economy” and considered 1.34 million national jobs large

enough to be substantial. Although harmless error was not at issue in Raymond, the

district court noted that the remaining number of national jobs in Ms. Evans’s case

was nowhere close to the Raymond figure.

      In the second case, Rogers v. Astrue, 312 F. App’x 138, 142 (10th Cir. 2009),

we implied that 11,000 national jobs was a significant number. The district court,

however, did not find Rogers persuasive for the notion that the number of remaining

national jobs (18,831) in Ms. Evans’s case was “significant” as a matter of law

because in Rogers the figure was stated in dictum and harmless error was not at issue.

      The district court considered Ms. Evans’s case to be on “all-fours” with

Chavez v. Barnhart, 126 F. App’x 434, 436 (10th Cir. 2005), in which we declined

to find harmless error when, after excluding some jobs the ALJ had improperly

identified, there remained 199 regional and 49,957 national jobs the claimant could

still perform. The court remanded to the ALJ for the second time so the ALJ could

determine whether 18,831 was a significant number of remaining national jobs.

      c. District court and attorney fees

      In its decision on EAJA fees, the district court concluded that the

Commissioner, although unsuccessful, was substantially justified in arguing harmless

error. The court reasoned that the conflicting authority cited in its merits decision

“could reasonably be viewed as supporting a decision either way,” and that ultimately

it had elected to remand based on Chavez. Aplt. App. at 168. The court noted a

statement in its merits decision “that it would not be surprised” if the ALJ found that

                                          -6-
the remaining national jobs existed in significant numbers, and it summed up by

stating that “reasonable minds clearly could differ” and the issue had been “a very

close call.” Id.

      d. Arguments on appeal

            i.     Post-hoc rationale

      On appeal, Ms. Evans first argues that the Commissioner did not advance a

“true” harmless error argument because she supplied a factual finding the ALJ did

not make—that 18,831 jobs in the national economy is significant for step-five

purposes. Ms. Evans contends, citing Hackett, 475 F.3d at 1175, that the

Commissioner improperly attempted to salvage the ALJ’s decision post hoc. In

Ms. Evans’s view, Trimiar’s refusal to draw a bright line regarding what constitutes a

significant number of jobs means that, except when there are more than one million

remaining jobs (as in Raymond), an ALJ must make the determination, not a court.

And because the number of jobs here was much smaller, it was unreasonable for the

Commissioner to advance the harmless-error argument.

      The “plus one million jobs” standard Ms. Evans advances proves to be this

argument’s undoing. She acknowledges there is no per se barrier to applying

harmless error where, as here, a court has decided that an ALJ erroneously included

one or more jobs and is left with the remaining jobs a claimant can perform with her

residual functional capacity. In Raymond and other social security cases, we have

held an ALJ’s erroneous inclusion of some jobs to be harmless error where there

remained a significant number of other jobs in the national economy. See, e.g.,

                                         -7-
Bainbridge v. Colvin, 618 F. App’x 384, 391–92 (10th Cir. 2015) (500,000 jobs);

Shockley v. Colvin, 564 F. App’x 935, 940–41 (10th Cir. 2014) (215,000 jobs);

Chrismon v. Colvin, 531 F. App’x 893, 899-900 (10th Cir. 2013) (212,000 jobs);

Stokes v. Astrue, 274 F. App’x 675, 684 (10th Cir. 2008) (152,000 jobs). The

Commissioner’s harmless-error argument was not, therefore, an improper post-hoc

rationale.3

              ii.   Tenth Circuit Precedent

       Ms. Evans’s other contention is that the Commissioner’s harmless-error

argument conflicted with Trimiar’s refusal to draw a bright line regarding what

constitutes a significant number of jobs and Allen’s harmless-error standard. As

Trimiar pointed out, there is no bright-line answer to how many jobs are enough for a

court to say, as a matter of law, that the number is significant, but the number appears

to be somewhere between 100, the number of jobs in Allen that we refused to

consider significant for harmless-error purposes, and 152,000, the lowest number of

jobs we have considered (in Stokes) to be sufficient so far for application of harmless

error.4 Based on these numbers, the Commissioner was substantially justified in


       3
         Given this conclusion, we need not reach the Commissioner’s response to
Ms. Evans’s post-hoc argument—that the ALJ’s finding regarding the number of
available jobs can reasonably be read to mean any one of the three jobs, standing
alone, exists in significant numbers because the ALJ did not aggregate the numbers.
       4
         Trimiar concluded that substantial evidence supported the ALJ’s finding that
650–900 jobs in Oklahoma (where the claimant lived) was a significant number, see
966 F.2d at 1330-32, because the ALJ had analyzed a number of specific factors,
including “the level of [the] claimant’s disability; the reliability of the vocational
expert’s testimony; the distance [the] claimant is capable of travelling to engage in
                                              -8-
arguing for harmless error based on the 18,831 remaining jobs here. Also, a close

reading of Chavez suggests it was the extremely low number of jobs in Oklahoma

(199) that drove our reluctance to find harmless error. See Chavez, 126 F. App’x

at 436 (stating that leaving the significant-number question for the ALJ “is

particularly appropriate where . . . the number of jobs in the region is relatively

small—199” (emphasis added)).

      Chavez was decided before Raymond clarified “that the relevant test is either

jobs in the regional economy or jobs in the national economy,” although generally

the focus is on the national economy. Raymond, 621 F.3d at 1274 n.2. Raymond’s

effect on Chavez therefore offers further support for concluding that the

Commissioner was substantially justified in arguing that 18,831 remaining jobs in the

national economy was sufficient for applying harmless error in this case.




the assigned work; the isolated nature of the jobs; [and] the types and availability of
such work.” Id. at 1330 (quotation omitted). Ms. Evans suggests the ALJ must
perform a similar factoral analysis with regard to the remaining 18,831 jobs and that
the Commissioner was accordingly not substantially justified in arguing harmless
error. Where, however, the number of jobs is “much larger” than the 650–900 at
issue in Trimiar, no factoral analysis is required. Raymond, 621 F.3d at 1275 n.2.
Admittedly, the number of remaining jobs in Raymond was much larger than in
Ms. Evans’s case. But given Raymond’s understanding of Trimiar—the extremely
low number of jobs in Trimiar triggered the need for a factoral analysis—coupled
with the fact that the remaining jobs in this case are in the national economy, the
Commissioner’s harmless-error argument did not lack substantial justification merely
because a court might decide that an ALJ would have to apply Trimiar’s factoral
analysis when 18,831 national jobs remain.
                                          -9-
2. Mental Limitations

       a. District court—second issue, second remand

       On the second remanded issue, Ms. Evans had argued that the ALJ’s

restriction to unskilled work did not adequately account for impairments the ALJ

found in her ability to carry out simple instructions and to focus and concentrate.

Although the Commissioner addressed the simple-instruction impairment at some

length, she addressed the focus-and-concentrate impairment only generally. As to the

latter, the Commissioner pointed out that Ms. Evans primarily relied on dicta in

Chapo v. Astrue, 682 F.3d 1285, 1290 n.3 (10th Cir. 2012), that unskilled work

“account[s] for issues of skill transfer, not impairment of mental functions—which

are not skills but, rather, general prerequisites for most work at any skill level,”

(internal quotation marks omitted). The Commissioner said Chapo had supported

this statement by relying on our pronouncement in an unpublished case, Wayland v.

Chater, Nos. 95-7029, 95-7059, 1996 WL 50459, at *2 (10th Cir. Feb. 7, 1996)

(unpublished), that it was “wrong” to “functionally equate[]” a mental impairment

with skill level.

       The district court addressed only the focus-and-concentrate impairment,

construing the ALJ’s decision as finding a moderate limitation. The court considered

Chapo and Wayland persuasive. It concluded that the relationship between skill level

and the limitation in Ms. Evans’s ability to focus and concentrate was not, as stated

in Wayland, of the sort “‘so obviously accommodated by a reduction in skill level’”

to relieve the ALJ from his duty to include the focus-and-concentrate limitation in the

                                          - 10 -
hypothetical he posed to the vocational expert (VE) who testified at the hearing

regarding Ms. Evans’s ability to work despite her impairments. Aplt. App. at 135-36

(quoting Wayland, 1996 WL 50459, at *2).5 The court therefore remanded on that

ground.

      b. District court and attorney fees

      In its EAJA decision, the district court determined that the Commissioner’s

argument was not unreasonable because there was conflicting Tenth Circuit authority

and because this type of issue turns on the individual facts of the case. In her

response to the EAJA motion, the Commissioner cited Wendelin v. Astrue,

366 F. App’x 899, 904 (10th Cir. 2010), in which we determined that an ALJ’s

hypothetical to a VE limiting the claimant to unskilled work adequately accounted

for concentration difficulties given that the ALJ recognized that treating physicians

“had not imposed restrictions or stated that she could not engage in competitive

work” despite expressing credible opinions that the claimant’s pain interfered with

her concentration. The district court stated that although it had ultimately sided with

Ms. Evans, the question was close, and both the underlying ALJ decision and the

Commissioner’s litigating position had a reasonable basis in law and fact.

Accordingly, the court denied an EAJA award based on this issue.




      5
       Because the district court addressed only the focus-and-concentration
impairment, we accordingly limit our review despite Ms. Evans’s appellate
arguments concerning the simple-instruction impairment.
                                         - 11 -
      c. Arguments on appeal

            i.   Tenth Circuit precedent

      On appeal, Ms. Evans argues that the district court erred in concluding there

was conflicting Tenth Circuit authority on this issue. She contends that in Groberg,

we indicated that Chapo and Wayland were controlling Tenth Circuit authority when

we cited those cases in support of the principle that “[a] limitation to ‘simple work’

or ‘unskilled jobs’ is generally insufficient to address a claimant’s mental

impairments.” Groberg, 505 F. App’x at 770.

      Although Groberg cited Chapo and Wayland, Wayland acknowledged that

“there may be circumstances in which a particular mental limitation could be so

obviously accommodated by a reduction in skill level that particularized vocational

evidence addressing that limitation might be dispensed with.” 1996 WL 50459,

at *2. And in Groberg itself, we said that limiting a claimant to “unskilled jobs” is

only “generally insufficient” to address mental impairments. 505 F. App’x at 770

(emphasis added). Thus, both Wayland and Groberg acknowledged there can be an

exception to Chapo’s suggested general approach.

      These four cases—Groberg, Chapo, Wayland, and Wendelin—illustrate that,

in general, limiting a claimant to unskilled work will not sufficiently convey the

degree of a claimant’s mental impairments to a VE. But a restriction to unskilled

work can account for a mental impairment in an appropriate case, for example, when

the relationship between skill level and mental capacity is obvious (as stated in

Wayland) or when an ALJ credits a medical-source opinion that a claimant’s

                                           - 12 -
concentration deficit does not affect the ability to do unskilled work (similar to

Wendelin).

      We recently discussed this issue in Vigil v. Colvin, 805 F.3d 1199, 1204

(10th Cir. 2015), in which we recognized that “[t]here may be cases in which an

ALJ’s limitation to ‘unskilled’ work does not adequately address a claimant’s mental

limitations.” Ultimately, however, we held that a limitation to unskilled work

adequately accounted for a moderate limitation in concentration, persistence, and

pace because the ALJ “found that the findings of a normal ability to recall items on

immediate recall, and an ability to spell words forward, as well as finding of normal

thought processes, indicated that Vigil retained enough memory and concentration to

perform at least simple tasks.” Id. at 1203-04 (brackets and internal quotation marks

omitted).

      The Commissioner’s argument that the district court should not follow Chapo

and Wayland was reasonably justified in law, and the district court did not commit a

legal error when it concluded there is conflicting authority on the subject. See

Martinez, 815 F.2d at 1383 (government’s position more likely to be substantially

justified when the legal principle on which it relied is “unclear or in flux”). For the

same reasons, the ALJ’s attempt to account for the focus-and-concentration limitation

through an unskilled-work restriction was substantially justified.

             ii.   Factual Justification

      We next ask whether the ALJ’s decision and the Commissioner’s litigating

position were substantially justified in fact. We conclude that they were.

                                           - 13 -
       The ALJ found that Ms. Evans’s ability to focus and concentrate was

“somewhat more severe” than the degree of impairment found by a consulting

psychologist, Dr. Morton. But it is unclear what the ALJ meant by that. After

examining Ms. Evans in 2008, Dr. Morton opined that she has “minimal mental

limitations in regard to maintaining attention, concentration, and pace.” Admin. R.,

Vol. II at 481. In his decision, the ALJ repeated Dr. Morton’s opinions regarding

limitations in other mental functions, but not his opinion regarding attention and

concentration.6

       The ALJ, however, did give great weight to Dr. Morton’s observations as a

whole, which, the ALJ said, “indicate the claimant has no insurmountable barriers to

performing at least simple work.” Id., Vol. III at 641. Only then did the ALJ

conclude that Ms. Evans’s ability to focus and concentrate was “somewhat more

severe” than Dr. Morton had opined. Id. In addition, the ALJ gave great weight to

an opinion Dr. Morton advanced after a second consultative examination

two-and-a-half years later—that Ms. Evans had only mild limitations in maintaining

attention, which the ALJ interpreted to mean “no significant degree of impairment,”

id. at 642.



       6
         Specifically, the ALJ repeated Dr. Morton’s opinion that Ms. Evans was
(1) mildly limited in her “ability to make judgments on simple or complex
work-related decisions, . . . to interact appropriately with the public, supervisors and
coworkers, and . . . to respond appropriately to usual work situations and to changes
in a routine work setting”; (2) moderately limited in her “ability to carry out simple
instructions”; and (3) markedly limited in her “ability to [carry] out detailed
instructions.” Admin. R., Vol. III at 640–41.
                                         - 14 -
       From the foregoing, it appears at least reasonably debatable that the ALJ

considered Ms. Evans’s ability to focus and concentrate to be mild or something

more than minimal or mild (as Dr. Morton had found) but less than moderate (as the

district court ultimately construed the ALJ’s finding). The ALJ was therefore

substantially justified in fact (although, in the district court’s opinion, ultimately

wrong) in accounting for Ms. Evans’s limitation in this area by limiting her to

unskilled work since mild limitations in focus and concentration can be consistent

with unskilled work. See Jaramillo v. Colvin, 576 F. App’x 870, 875–76 (10th Cir.

2014) (distinguishing between “moderate” limitations in attention and concentration,

which a limitation to unskilled work did not sufficiently account for, and lesser

limitations in those functional areas, which a limitation to unskilled work could

account for).7

       Because the ALJ’s finding as to the degree of Ms. Evans’s limitation in focus

and concentration was reasonably debatable, the Commissioner’s litigating position

was substantially justified in fact given that our case law, as we have discussed,

leaves open the possibility that, in the right circumstances (such as in Vigil), a




       7
          Although Jaramillo was decided after the district court’s decision on the
merits of Ms. Evans’s case, its analysis is helpful to understanding the state of this
circuit’s jurisprudence stemming from Chapo and other cases regarding whether a
restriction to unskilled work can account for mild to moderate mental limitations.

                                          - 15 -
limitation to unskilled work can account for even moderate limitations in mental

functions.8

                                III. CONCLUSION

      The judgment of the district court is affirmed.


                                           ENTERED FOR THE COURT,



                                           Scott M. Matheson, Jr.
                                           Circuit Judge



      8
          This case is closer to Wendelin than Groberg. In Wendelin, we approved the
ALJ’s use of a limitation to unskilled work because treating physicians thought the
claimant’s pain interfered with concentration but not work. Wendelin, 366 F. App’x
at 904. Here, the Commissioner could reasonably construe the ALJ’s discussion of
Dr. Morton’s opinions as finding that Ms. Evans’s focus and concentration
limitations only mildly affect her ability to work.
        In Groberg, the merits panel concluded that “the ALJ’s evaluation of the
medical evidence concerning [Mr.] Groberg’s mental impairments was seriously
deficient,” that the medical evidence showed a “debilitating set of mental
impairments,” and that the ALJ had made numerous “unsupported findings” in
support of his conclusion that Mr. Groberg’s “mental impairments posed no
limitation on his ability to work.” Groberg v. Astrue, 415 F. App’x 65, 67-68
(10th Cir. 2011). Here, the district court reasoned only it was not obvious that a
restriction to unskilled work could account for Ms. Evans’s limited ability to focus
and concentrate.
        Further, in our Groberg EAJA decision, we determined that the ALJ’s decision
was not substantially justified because of the “many, serious deficiencies” the merits
panel had identified. Groberg, 505 F. App’x at 768. Based on those deficiencies, we
concluded the Commissioner was not substantially justified in making a host of
arguments, including that the ALJ’s errors were rendered harmless by a limitation to
unskilled work. Id. at 770. Here, the ALJ’s decision was not nearly as flawed as the
one in Groberg, and the Commissioner’s litigation position was substantially
justified because, unlike the multiple impairments in Groberg, the degree of
impairment the ALJ found in Ms. Evans’s ability to focus and concentrate was
reasonably debatable.
                                        - 16 -
