                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             MAY 22 2001
                             FOR THE TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

    THELMA I. CULLER,

                Plaintiff-Appellant,

    v.                                                     No. 00-3163
                                                    (D.C. No. 96-CV-4164-SAC)
    LARRY G. MASSANARI, * Acting                             (D. Kan.)
    Commissioner of Social Security,

                Defendant-Appellee.


                             ORDER AND JUDGMENT             **




Before EBEL , PORFILIO , and LUCERO , Circuit Judges.


         Plaintiff appeals the district court’s denial of her application for attorney

fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. In a

previous decision, the district court reversed the Commissioner’s denial of Social


*
      On March 29, 2001, Larry G. Massanari became Acting Commissioner of
Social Security. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Massanari is substituted for Kenneth S. Apfel as the
appellee in this action.
**
      The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Security benefits to plaintiff and remanded the action to the Commissioner for

further proceedings. The district court determined that the administrative law

judge (“ALJ”), whose decision became the final decision of the Commissioner,

had committed three reversible errors.

      First, the ALJ failed to include all of plaintiff’s impairments in his

hypothetical questions to the vocational expert (“VE”). In particular, the ALJ

failed to question the VE about plaintiff’s severe emotional and mental problems,

including her limited reading and comprehension skills. Second, the ALJ did not

follow the correct legal standards in evaluating plaintiff’s allegations of pain.

Specifically, the ALJ failed to link his findings to substantial evidence in the

record and completely omitted one of plaintiff’s impairments from his pain

analysis under Luna v. Bowen , 834 F.2d 161 (10th Cir. 1987). Finally, the ALJ

erroneously discounted the opinion of a treating physician and substituted for it

the opinion of a non-examining medical advisor.

      After the district court reversed the denial of benefits, plaintiff filed an

application for attorney fees under the EAJA. The EAJA allows a prevailing

party to recover litigation costs against the United States “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 parties

do not dispute that plaintiff qualifies as a prevailing party for EAJA purposes.


                                          -2-
The district court nonetheless denied the fee application because it determined

that the government’s position was “substantially justified.”     Id.

       “[T]he government bears the burden of showing that its position was

substantially justified. To do so, the government must prove that its case had a

reasonable basis in law and in fact.”    Hadden v. Bowen , 851 F.2d 1266, 1267

(10th Cir. 1988) (citations omitted). “[T]he reasonableness test breaks down into

three parts: the government must show that there is a reasonable basis for the

facts alleged[;] that there exists a reasonable basis in law for the theory it

propounds; and that the facts alleged will reasonably support the legal theory

advanced.” Gatson v. Bowen , 854 F.2d 379, 380 (10th Cir. 1988) (quotations

omitted).

       “In determining whether the government’s position was reasonable, the

trial judge must make a separate review of the government’s position to

determine whether it was substantially justified. The term ‘position’ includes the

government’s position both in the underlying agency action and during any

subsequent litigation.”   Hadden , 851 F.2d at 1267 (citations omitted). We review

the district court’s determination that the government’s position was substantially

justified under an abuse of discretion standard.     Id. at 1268. In this case, we find

dispositive the Commissioner’s failure to demonstrate a reasonable basis for the

ALJ’s omission of plaintiff’s mental and emotional impairments from his


                                            -3-
hypothetical questions to the VE, especially the limitations on her ability to read

and comprehend.

      In late April 1987, plaintiff suffered a back injury while working as a

nurse’s aide and was unable to return to work. As part of her rehabilitation

effort, plaintiff began attending junior college in 1988 to earn an associate degree

that would allow her to seek other employment. She graduated in May 1992 and

applied for many jobs in the following months, but she was unable to find

employment.

      In December 1992, plaintiff filed her application for benefits, alleging she

had been disabled since May 3, 1987. After a hearing before the ALJ in October

1994, plaintiff’s counsel informed the ALJ that he wished to amend the onset

date to June 1991. Counsel reasoned that because plaintiff could not receive

back benefits under her December 1992 application for a period greater than

eighteen months, alleging an onset date earlier than June 1991 would be futile.

Plaintiff’s insured status expired on December 31, 1992.

      The medical evidence showed that, at the time plaintiff applied for

disability benefits, she suffered from low back problems, varicose veins with

venous ulcers, mitral valve prolapse without cardiac disease, a history of right

urethral obstruction, urinary incontinence, asthma, and chest pain. During the

course of the hearing before the ALJ, plaintiff had difficulty comprehending


                                         -4-
straightforward questions from the ALJ and appeared to be crying throughout

much of the hearing. These circumstances prompted the ALJ to refer plaintiff to

Dr. Whitten, a clinical psychologist, for a mental status review, intelligence

appraisal, and objective personality testing.

      Dr. Whitten examined plaintiff in February 1995 and issued a report

diagnosing her with “Personality Disorder NOS     [3]
                                                        with histrionic, compulsive,

self-defeating, and codependent features” and giving her a GAF        4
                                                                          score of 45

because “[e]motional issues and personality structure cause serious interference

in social and occupational functioning and in marital relationships.” (II

Appellant’s App. at 327.) Dr. Whitten’s testing also revealed that plaintiff had

only a sixth grade level of word pronunciation and was not able to recognize the




3
       “NOS” stands for “Not Otherwise Specified.”          American Psychiatric Ass’n,
Diagnostic & Statistical Manual of Mental Disorders 4 (4th ed. 1994). The
category of Personality Disorder NOS “is for disorders of personality functioning
that do not meet criteria for any specific Personality Disorder. An example is the
presence of features of more than one specific Personality Disorder that do not
meet the full criteria for any one Personality Disorder (‘mixed personality’), but
that together cause clinically significant distress or impairment in one or more
important areas of functioning (e.g., social or occupational).”     Id. at 673.
4
        “GAF” stands for “Global Assessment of Functioning,” and reflects “the
clinician’s judgment of the individual’s overall level of functioning.” Id. at 30.
GAF scores range from 0 to 100. A GAF score of 45 reflects that the individual
has either “[s]erious symptoms . . . OR any serious impairment in social,
occupational, or school functioning.”      Id. at 32.

                                          -5-
words she mispronounced. Dr. Whitten concluded that she was “possibly

significantly limited in reading and reading comprehension.”    (Id. at 326.) 5

      At the October 1994 hearing, the ALJ received testimony from plaintiff,

from a medical advisor, and from a VE. Because the ALJ had not yet received

Dr. Whitten’s report, his questions to the VE did not include any of the mental or

emotional limitations recited in that report. Even after receiving Dr. Whitten’s

report detailing those limitations, however, the ALJ did not pose additional

questions to the VE or order a supplemental hearing. Instead, he simply held that

he could not consider her mental and emotional impairments because “claimant’s

emotional problems, which are now fairly severe, did not manifest themselves

until after December 31, 1992, the date that she last met the insured requirements

of the Social Security Act.” (   Id. at 20.) Based on the VE’s testimony that

plaintiff could perform the job of medical receptionist for a hospital, initial

review clerk for an insurance company, or appointment clerk for a medical office

or hospital, the ALJ concluded at step five of the sequential analysis that plaintiff

was not disabled.

      The district court determined that the ALJ’s finding that plaintiff’s

emotional and mental limitations did not manifest themselves until after


5
      Dr. Whitten also found plaintiff to be deficient in mental arithmetic,
“making many errors in calculation at fairly simple levels.” (II Appellant’s App.
at 325.)

                                          -6-
December 1992 was not supported by substantial evidence. The court noted

references to similar emotional problems in the evidence that predated December

1992 and also determined there was no basis for concluding that plaintiff’s

limited reading and comprehension difficulties arose only after that date.   6



Because the ALJ did not include this “fairly severe” impairment in his questions

to the VE, the district court concluded that the VE’s testimony could not

constitute substantial evidence to support the ALJ’s determination that there were

other jobs in the national economy that plaintiff could perform despite her

impairments.

       In his merits brief, the Commissioner attempted to defend the ALJ’s

omission of plaintiff’s mental and emotional limitations from his questions to the

VE on the following grounds: (1) neither plaintiff’s work nor her medical

records established that her emotional problems were disabling prior to December

1992; (2) plaintiff did not allege any mental or emotional problems in her

application, she sought no treatment for them, and she did not complain of them

to physicians who treated her during the relevant period; (3) plaintiff attended

junior college during the relevant period and was on the Honor Roll six out of

eight semesters; and (4) although there were references in the pre-December 1992



6
       The same would undoubtedly be true of plaintiff’s mental arithmetic
deficiencies, but the district court did not mention those in it merits decision.

                                            -7-
medical records to plaintiff’s crying or being on the verge of crying, when the

ALJ asked plaintiff about her tears during the hearing she said she had a runny

nose and watery eyes due to allergies.

       Based on our review of the record, we conclude that the Commissioner's

arguments do not establish that his position was substantially justified. First, the

law does not require that plaintiff’s mental and emotional impairments be

disabling to warrant inclusion in the ALJ’s hypothetical questions to the VE; it

requires only that they be   severe , i.e., significantly limit her ability to do basic

work activities.   See 20 C.F.R. § 404.1520(c) (defining a severe impairment);

Hargis v. Sullivan , 945 F.2d 1482, 1492 (10th Cir. 1991) (“Testimony elicited by

hypothetical questions that do not relate with precision all of a claimant's

impairments cannot constitute substantial evidence to support the Secretary’s

decision.” (quotation omitted));    Evans v. Chater , 55 F.3d 530, 532 (10th Cir.

1995) (noting “established rule that such inquiries must include all (and only)

those impairments borne out by the evidentiary record”).

       Second, plaintiff’s failure to complain of mental or emotional problems or

to seek treatment for them is entirely consistent with Dr. Whitten’s assessment.

Dr. Whitten reported: “What I think are diagnosable amounts of personality

disorder are outside of her conscious awareness.” (II Appellant’s App. at 324.)

He also stated that plaintiff was poorly in touch with her own needs and feelings


                                            -8-
and that she would “tend to deny any psychological basis for her problems.” (     Id.

at 326.)

      Third, plaintiff’s college attendance and performance are not inconsistent

with Dr. Whitten’s report. Plaintiff testified that she began studying for her

associate degree in the spring of 1988, and the evidence shows that she obtained

her degree in May of 1992. It took her approximately four years to complete the

two-year course for an associate degree even though that was the only activity in

which she was engaged. She told Dr. Whitten that “she had to study for hours to

make good grades on the college courses most of which had to do with computer

operation or typing,” and she testified at the hearing that she worked very hard in

school, studying late into the night and on weekends. (   Id. at 323.) These facts

are all consistent with Dr. Whitten’s opinion that plaintiff is “possibly

significantly limited in reading and reading comprehension and tries to

compensate for limitations with excessive amounts of work.” (      Id. at 326.)

      Finally, plaintiff’s attempt to explain away her tears at the hearing as being

due largely to allergies is also consistent with Dr. Whitten’s observations about

her tendency to “deny all upsetting emotions.” (    Id. at 323.) Moreover, her

explanation that she was merely suffering from allergies is belied by other

physicians’ reports that she was crying or on the verge thereof.




                                           -9-
      In his brief regarding the application for fees, the Commissioner argues the

district court failed to mention that Dr. Whitten did not examine plaintiff until

more than two years after the expiration of her insured status and that his report

made no attempt to provide a retrospective diagnosis. While those two facts are

true, there is no indication that the district court ignored them. Moreover, those

facts neither undermine the district court’s rationale in reversing the denial of

benefits nor establish substantial justification for the Commissioner’s position.

      We conclude the Commissioner failed to demonstrate a reasonable basis in

fact or law for the ALJ’s failure to include plaintiff’s mental and emotional

impairments in his questions to the VE, particularly plaintiff’s limited reading

and comprehension abilities. The district court therefore erred in denying

plaintiff’s application for fees under the EAJA.

      Plaintiff sought fees for 43.3 hours of work at a rate of $137.50 per hour,

an amount to which the Commissioner objected. Because the district court

denied the fee request in its entirety, it did not consider the reasonableness of

either the number of hours claimed or the hourly rate sought by plaintiff. We

conclude that these determinations are best made by the district court in the first

instance. Accordingly, we remand to the district court to calculate the

appropriate fee award.




                                         -10-
      The judgment of the district court is      REVERSED , and the case is

REMANDED to the district court for further proceedings consistent with this

order and judgment.



                                                        Entered for the Court



                                                        Carlos F. Lucero
                                                        Circuit Judge




                                              -11-
