                                                   NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 10-2962
                                    _____________

                                  VICTORIA BEEKS,
                                              Appellant

                                            v.

                     COMMISSIONER OF SOCIAL SECURITY

                                   _______________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                                 (D.C. No. 07-cv-3781)
                       District Judge: Hon. Susan D. Wigenton
                                   _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 14, 2011

              Before: FISHER, JORDAN and COWEN, Circuit Judges.

                                 (Filed April 19, 2011)
                                   _______________

                              OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge.

      Victoria Beeks appeals the order of the United States District Court for the District

of New Jersey denying her motion seeking attorney‟s fees and costs under the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. For the following reasons, we will

affirm.

I.        Background

          On December 10, 2004, Beeks filed a claim for disability insurance benefits and a

claim for supplemental security income based on an alleged disability that began on

October 1, 2002. Both claims were initially denied on April 22, 2005 and again upon

reconsideration on June 9, 2005. On July 12, 2005, Beeks requested a hearing before an

Administrative Law Judge (“ALJ”) and later testified at a hearing on September 9, 2005.

          In an October 17, 2006 decision, the ALJ evaluated Beeks‟s disability claim using

the standard five-step analysis and determined that she was not disabled within the

meaning of the Social Security Act.1 The ALJ concluded that: (1) Beeks had engaged in



          1
        As established by regulation and precedent, disability claims require the
following analytical steps:

          In step one, the Commissioner must determine whether the claimant is
          currently engaging in substantial gainful activity. If a claimant is found to
          be engaged in substantial activity, the disability claim will be denied. In
          step two, the Commissioner must determine whether the claimant is
          suffering from a severe impairment. If the claimant fails to show that her
          impairments are “severe”, she is ineligible for disability benefits.
                 In step three, the Commissioner compares the medical evidence of
          the claimant‟s impairment to a list of impairments presumed severe enough
          to preclude any gainful work. If a claimant does not suffer from a listed
          impairment or its equivalent, the analysis proceeds to steps four and five.
          Step four requires the ALJ to consider whether the claimant retains the
          residual functional capacity to perform her past relevant work. The claimant
          bears the burden of demonstrating an inability to return to her past relevant
          work.
                 If the claimant is unable to resume her former occupation, the
          evaluation moves to the final step. At this stage, the burden of production
                                                 2
substantial gainful activity since the alleged onset date of her disability2; (2) Beeks had

severe impairments, including arthritis, high blood pressure, and asthma; (3) Beeks‟s

impairments did not meet or medically equal any of the impairments listed in 20 C.F.R.

Part 404, Subpart P, Appendix 1; (4) Beeks had the residual functional capacity to

perform light work; and (5) Beeks was capable of performing past relevant work as a

school aide. Beeks requested review of the ALJ‟s decision, but was denied by the

Appeals Council on July 27, 2007, making the ALJ‟s decision the final decision of the

Commissioner of Social Security. Pursuant to section 205(g) of the Social Security Act,

42 U.S.C. § 405(g), Beeks filed a civil action for review of that decision.

       The District Court effectively affirmed the decision, concluding that substantial

evidence in the form of medical examination results, medical reports, a medication list,

medical and work history, and Beeks‟s own testimony supported the finding that Beeks


       shifts to the Commissioner, who must demonstrate the claimant is capable
       of performing other available work in order to deny a claim of disability.
       The ALJ must show there are other jobs existing in significant numbers in
       the national economy which the claimant can perform, consistent with her
       medical impairments, age, education, past work experience, and residual
       functional capacity. The ALJ must analyze the cumulative effect of all the
       claimant‟s impairments in determining whether she is capable of
       performing work and is not disabled.
Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999) (citations omitted); see also 20
C.F.R. § 404.1520.
       2
        In a numbered heading in its opinion, the ALJ indicated that Beeks “ha[d] not
engaged in substantial gainful activity” since the alleged onset date. (App. at 7 (emphasis
added).) However, as the District Court and this Court previously indicated upon review,
the ALJ‟s analysis clearly indicates that the ALJ found the opposite – that Beeks had
engaged in substantial gainful activity – and the heading was merely a typographical
error. Accordingly, we dismiss without further discussion all of Beeks‟s arguments
predicated on a literal reading of that heading.

                                              3
was not disabled. On appeal from that decision, we vacated and remanded for further

analysis at step one of the disability inquiry. Specifically, we directed remand so that the

ALJ could consider whether Beeks‟s earnings as a school aide after the alleged onset

date, which were less than the monthly average for presumed substantial gainful activity

under the earnings guidelines in 20 C.F.R. § 404.1574(b) (the “Earnings Guidelines”),

affected the conclusion that she had been engaged in substantial gainful activity.3

       Beeks, having arguably prevailed on appeal, subsequently filed a motion for

attorney‟s fees and costs pursuant to EAJA, which the District Court denied. The District

Court concluded that the Social Security Administration was substantially justified in

adopting the ALJ‟s decision, reasoning that, even though the ALJ failed to address

Beeks‟s earnings under the Earnings Guidelines in its step one analysis, the ALJ‟s

analysis covered other relevant factors that gave the step one finding a reasonable basis.




       3
        The ALJ‟s failure to consider Beeks‟s earnings was a significant omission, since,
as we noted, “earnings derived from the work activity are generally the primary
consideration in evaluating the work for substantial gainful activity purposes.” Beeks v.
Comm’r of Soc. Sec., 363 F. App‟x 895, 896 (3d Cir. 2010). We also noted that the step
one analysis can affect the step four analysis, since Beeks‟s “past relevant work” as a
school aide must qualify as “substantial gainful activity,” and we sought clarification of
whether the ALJ‟s analyses of steps two through four were done in the alternative or
whether the ALJ proceeded past step one only as to the period after Beeks became
unemployed. Id. at 897-98.

                                             4
II.    Discussion4

       Under EAJA, a prevailing party is entitled to attorney‟s fees and costs unless the

government‟s position was substantially justified or if special circumstances would make

the award unjust. 28 U.S.C. § 2412(d)(1)(A). The Social Security Administration does

not dispute that Beeks was a prevailing party under EAJA and does not assert any other

circumstances that would make the award unjust, so the only issue is whether the Social

Security Administration‟s position regarding Beeks‟s substantial gainful activity was

substantially justified.

       We review a district court‟s determination of substantial justification under the

deferential abuse of discretion standard. Morgan v. Perry, 142 F.3d 670, 682 (3d Cir.

1998). “An abuse of discretion arises when the district court‟s decision „rests upon a

clearly erroneous finding of fact, an errant conclusion of law or an improper application

of law to fact.‟” Id. (quoting Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 127

(3d Cir. 1993)).

       To be substantially justified under EAJA, a position taken by the government must

have been “„justified in substance or in the main‟ – that is, to a degree that could satisfy a

reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Stated another

way, the government‟s position must have had a “reasonable basis in both law and fact.”

Hanover Potato Prods. Inc., 989 F.2d at 128.



       4
        The District Court had jurisdiction pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3). We have jurisdiction pursuant to 28 U.S.C. § 1291.

                                              5
       Here, the District Court recognized that the ALJ had not specifically cited the

Earnings Guidelines or discussed why Beeks‟s modest earnings still allowed a finding of

substantial gainful activity. The District Court noted, however, that the ALJ did

meaningfully analyze other factors relevant to the substantial gainful activity inquiry,

including the following: (1) that, despite Beeks‟s attempt to characterize occasional help

from coworkers as an accommodation, she was never afforded formal special

accommodations at work; (2) that Beeks did not quit work due to disability but rather was

laid off due to funding cuts and continued working after the alleged onset of the

disability; (3) that, by collecting unemployment, Beeks had necessarily certified that she

was able to work, see N.J. STAT. ANN. § 43:21-4(c)(1); and (4) that Beeks‟s earnings

were the same as the unimpaired individuals performing the same occupation, working

the same amount of time.

       Moreover, the Earnings Guidelines merely set presumptions regarding substantial

gainful activity.5 See 20 C.F.R. § 404.1574(a)(1) (“Generally, if you worked for

substantial earnings, we will find that you are able to do substantial gainful activity.”).

Those presumptions may be overcome. See id. (“[T]he fact that your earnings were not

substantial will not necessarily show that you are not able to do substantial gainful

activity.”). In fact, the regulatory scheme provides that the ALJ “will generally consider


       5
         In arguing that the Social Security Administration‟s reliance on the ALJ‟s
opinion is not substantially justified, Beeks treats the Earnings Guidelines presumptions
as threshold requirements. In actuality, however, they are simply presumptions that the
Social Security Administration may use “whenever they are appropriate.” 20 C.F.R.
§ 404.1574(a).

                                              6
other information in addition to [a claimant‟s] earnings if there is evidence indicating that

[a claimant] may be engaging in substantial gainful activity.”6 Id. § 404.1574(b)(3)(ii).

Because the record here contains such evidence, the ALJ‟s failure to discuss Beeks‟s

earnings in relation to step one does not render the decision unreasonable, even though it

was certainly open to question. Accordingly, it was not an abuse of discretion for the

District Court to conclude that the ALJ‟s decision had a reasonable basis in law and fact

and that the Social Security Administration‟s adoption of it was substantially justified.

The District Court did not err, then, in denying Beeks‟s motion for fees and costs under

EAJA.

III.    Conclusion

        For the foregoing reasons, we will affirm the District Court‟s denial of Beeks‟s

motion for fees and costs under EAJA.




        6
        Among the additional information permitted to be considered is whether the
claimant‟s work is “comparable to that of unimpaired people in your community who are
doing the same or similar occupations,” 20 C.F.R. § 404.1574(b)(3)(ii)(A), which the
ALJ addressed in its opinion.

                                              7
