                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 10-1116


THOMAS MORTENSEN,

                 Plaintiff - Appellant,

           v.

MICHAEL   J.  ASTRUE,   Commissioner          of   Social     Security,
substituted for JoAnne Barnhart,

                 Defendant - Appellee,

           and

SOCIAL SECURITY ADMINISTRATIVE RECORD,

                 Party Below.



Appeal from the United States District Court for the District of
South Carolina, at Anderson. Joseph F. Anderson, Jr., District
Judge. (8:07-cv-00547-JFA)


Argued:   March 23, 2011                           Decided:    May 5, 2011


Before NIEMEYER and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished opinion.      Judge Niemeyer wrote the
opinion, in which Judge Davis and Senior Judge Hamilton joined.


ARGUED:  Charles Lee Martin, MARTIN & JONES, Decatur, Georgia,
for Appellant.  Marvin Jennings Caughman, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.    ON
BRIEF:    Paul T. McChesney, Spartanburg, South Carolina, for
Appellant.    William N. Nettles, United States Attorney, Beth
Drake, First Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina; Dorrelyn K.
Dietrich, Special Assistant United States Attorney for the
District of South Carolina, John Jay Lee, Acting Regional Chief
Counsel, SOCIAL SECURITY ADMINISTRATION, Denver, Colorado, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
NIEMEYER, Circuit Judge:

       Thomas       Mortensen,       who     suffers       from    degenerative        disc

disease, applied for Social Security disability benefits.                                 The

Social Security Administration denied his claim, and on appeal,

the district court reversed, concluding that the Social Security

Administration’s         ruling       was     not      supported      by     substantial

evidence.        Thereafter Mortensen filed a motion for attorneys

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

§ 2412(d), which provides that prevailing parties are entitled

to    their     attorneys      fees    “unless       the    court    finds     that       the

position of the United States was substantially justified.”                               The

district court concluded that the Social Security Commissioner’s

position      was    substantially         justified       and    accordingly       denied

Mortensen’s         motion     for    attorneys      fees.         From     that    order,

Mortensen now appeals.           We affirm.


                                              I

       Beginning in 2004, Mortensen began to experience acute pain

in    his   lower     back     and    left    leg.         Dr.    Darrell    Cunningham,

Mortensen’s         treating     physician,        was     initially       skeptical       of

Mortensen’s complaints.              But following an inspection of an MRI,

Dr.     Cunningham       found        that        Mortensen       suffered         from     a

“degenerative         disc      disease.”            Dr.     Cunningham       eventually

concluded that Mortensen could occasionally lift five pounds,


                                              3
could stand and walk for one hour total per day; could grasp

with   both   upper    extremities,     but   not   reach,   push,     pull    or

perform fine manipulations of his hands; and could not operate

foot or leg controls.

       Dr. Cunningham also referred Mortensen to Dr. Farook J.

Kidwai, a neurological specialist, who performed a series of

tests and diagnosed Mortensen as having “lumbar spondylosis with

discogenic    pain     and   early    radiculopathy.”          Following      his

assessment of Mortensen, Dr. Kidwai advised Mortensen to

       avoid all activities that aggravate his symptoms.  In
       particular, he should avoid repetitive bending and
       twisting of his low back.     He should refrain from
       prolonged sitting, standing, walking, stooping, or
       driving for more than one-half hour at a time. After
       each such period of activity, he should either change
       his pace, or better yet, take a few minutes’ break if
       at all possible. He should also not lift more than 20
       pounds at a time.

       Another assessment made subsequently by a third physician

was    substantially    in   line    with   the   assessment    made    by    Dr.

Kidwai.

       Relying on Dr. Cunningham’s assessment, Mortensen filed a

claim for Social Security disability benefits in February 2005.

Following a hearing on his claim, an administrative law judge

(“ALJ”) denied Mortensen’s claim, based on two findings.

       First, the ALJ discounted Dr. Cunningham’s diagnosis and

instead gave controlling weight to Dr. Kidwai’s opinion, which,

he felt was “more consistent with the record as a whole.”                     The

                                       4
ALJ believed that he was entitled to do so because, while the

opinion of an applicant’s treating physician is usually entitled

to “controlling weight,” 20 C.F.R. § 416.927(d)(2), it can be

discounted if it is not supported by clinical evidence or is

inconsistent with other substantial evidence in the record, see

Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001).                               In the

ALJ’s     view,      Dr.    Cunningham’s        conclusions       were       “not     well

supported      objectively”     because    Cunningham          relied    primarily     on

Mortensen’s subjective complaints of pain.                       Other doctors, on

the other hand, had found that Mortensen was capable of a wider

range of activity.

     Second, the ALJ found that while Mortensen suffered from a

legitimate injury, his claims regarding the resulting pain were

not credible.         This finding focused on perceived inconsistencies

between Mortensen’s statements about the effectiveness of the

treatments he received.           For example, he told one doctor that

“nothing    had      relieved   his   pain,”     while     he    stated      at   another

point   that    morphine      injections       and   a   drug    called      Bextra    had

helped.

     Based      on    these   conclusions,       the     ALJ    asked    a   vocational

expert whether a person with the capabilities described by Dr.

Kidwai was disabled.            The expert concluded that such a person

would be capable of performing light work and therefore would

not be disabled.           But he added that a person would be disabled

                                           5
if    he     suffered        from    the    kind      of    pain     that     Mortensen      had

complained        of.         Having      already       found     Mortensen’s       testimony

regarding       his      pain       not    credible,        the     ALJ     concluded       that

Mortensen was not disabled.

       The     Social         Security      Administration’s              Appeals        Council

ratified the ALJ’s opinion.

       On appeal to the district court, a magistrate judge issued

a    report    and      recommendation           which      concluded       that    the   ALJ’s

opinion       about     the     weight     of     Dr.      Cunningham’s       diagnosis     and

Mortensen’s        credibility            was     not      supported        by     substantial

evidence and that Mortensen was entitled to disability benefits.

The     magistrate           judge      pointed       out     that      Dr.      Cunningham’s

conclusions were not based on Mortensen’s subjective statements

about pain, but instead on an MRI, which clearly identified a

degenerative          disc     disease      in    Mortensen’s        lower       back.      The

magistrate judge also concluded that Dr. Cunningham’s opinion

was consistent with Dr. Kidwai’s assessment in most respects

aside      from       the      amount      of     weight      Mortensen          could    lift.

Accordingly,            the     magistrate           judge        concluded        that      Dr.

Cunningham’s diagnosis was entitled to controlling weight.

       As to the ALJ’s findings about Mortensen’s credibility, the

magistrate        judge       observed     that      the    ALJ’s    decision       had    over-

emphasized short breaks in Mortensen’s efforts to seek treatment

and had found inconsistencies in Mortensen’s statements about

                                                 6
pain where none truly existed.                     Indeed, the magistrate judge

noted   that     the    ALJ    had     construed         Mortensen’s        testimony     “so

narrowly as to not account for the way in which people commonly

speak, particularly about health issues” and “appeared anxious

to identify some reason not to believe” Mortensen.

      Neither Mortensen nor the Commissioner of Social Security

objected to the magistrate judge’s report and recommendation.

Accordingly, the district court adopted it wholesale.                             The court

reversed    the    Social       Security          Administration’s          decision      and

remanded the case to the agency for an award of benefits.

      As the prevailing party, Mortensen then filed a motion for

attorneys fees under the EAJA, which the Commissioner of Social

Security opposed.         The Commissioner argued that while he did not

prevail     on     the        merits,     his        position         was        nonetheless

“substantially         justified,”       so       that    a     fee      award    would    be

inappropriate under 28 U.S.C. § 2412(d)(1)(A).

      The district court agreed with the Commissioner and denied

Mortensen    attorneys        fees,     concluding         that    the     Commissioner’s

position was substantially justified.                      In the court’s view, it

was   reasonable       for    the    Commissioner          to     have    relied     on   Dr.

Kidwai’s opinion that Mortensen “could engage in light work” and

“to advocate that this opinion of a specialist should have been

given     more    weight        than     that       of        [Mortensen’s]         treating

physician.”

                                              7
       This appeal followed.


                                              II

       Under      the     EAJA,       prevailing          parties       are        entitled      to

attorneys      fees     “unless       the    [district]          court        finds   that      the

position of the United States was substantially justified.”                                      28

U.S.C. § 2412(d)(1)(A).               To take advantage of the exception, the

government      must     show     that      its       position    was    justified        “as    an

inclusive      whole.”          INS    v.    Jean,       496     U.S.    154,      159,     161-62

(1990).      In other words, the substantial justification analysis

encompasses not only the government’s litigating positions, but

also   its     positions       in     administrative           hearings       as    well.       See

Crawford     v.     Sullivan,        935    F.2d       655,    656-57    (4th      Cir.     1991).

“There is no ‘presumption that the Government position was not

substantially justified, simply because it lost the case.’”                                     Id.

(quoting Tyler Bus. Servs., Inc. v. NLRB, 695 F.2d 73, 75 (4th

Cir. 1982)).         Rather, the government’s position is substantially

justified      so     long     as     “a    reasonable         person     could       think      it

correct, that is, if it has a reasonable basis in law and fact.”

Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988); see also

Crawford,      935      F.2d    at    658    (holding          that     the    government        is

substantially justified so long as it “rel[ies] on an arguably

defensible administrative record” (quoting Guthrie v. Schweiker,

718 F.2d 104, 108 (4th Cir. 1983))).


                                                  8
       We review the district court’s application of the EAJA’s

“substantially      justified”     exception   for     abuse        of    discretion.

See Pierce, 487 U.S. at 562-63; Crawford, 935 F.2d at 656.

       Mortensen contends first that the Commissioner’s position

was not “substantially justified” because it was not supported

by substantial evidence.           Arguing for a per se rule, Mortensen

relies on a 1985 House of Representatives report which states

that    “[a]gency    action      found   to   be   .    .     .     unsupported      by

substantial   evidence      is    virtually    certain        not    to    have    been

substantially justified.”          H.R. Rep. No. 99-120, pt. 1, at 9-10

(1985), reprinted      in   1985    U.S.C.C.A.N.       132,       138.     Since    the

district court found that the ALJ’s decision was not supported

by substantial evidence, Mortensen argues that he is entitled to

attorneys fees as a matter of law.

       We have, however, rejected this position.                  As we stated,

       Congress never intended to adopt this standard.    The
       only support for such a rule is found in a few
       sentences in the middle of a House Report.          If
       Congress had wanted this broad standard, which exceeds
       any judicial interpretation of the EAJA, it would have
       amended the statute, as it did in modifying [other
       parts of the Social Security Act].

Pullen v. Bowen, 820 F.2d 105, 108 (4th Cir. 1987), abrogated on

other grounds as recognized in Lively v. Bowen, 858 F.2d 177,

180 (4th Cir. 1988); see also Hadden v. Bowen, 851 F.2d 1266,

1268 (10th Cir. 1988) (declining to follow the quoted report

language); Broussard v. Bowen, 828 F.2d 310, 311-12 (5th Cir.

                                         9
1987)    (“The     substantial-evidence             standard        and    the    without-

reasonable-justification standard are neither semantic nor legal

equivalents”); FEC v. Rose, 806 F.2d 1081, 1089-90 (D.C. Cir.

1986) (labeling the House report language “spurious legislative

history”).       Accordingly, we reject Mortensen’s argument that he

is entitled to attorneys fees simply because the ALJ’s decision

was not supported by substantial evidence.

       Mortensen       also     contends    that    the     Commissioner’s        position

was not substantially justified because he did not argue in the

district       court     that     the     ALJ’s     decision       was     “substantially

justified.”              While          Mortensen      acknowledges           that       the

Commissioner’s         litigating       position     in    the     district      court   may

have     been     reasonable,       he     maintains        that     the    Commissioner

nonetheless failed to defend the ALJ’s conclusions and thereby

failed    to     prove    that    the     government’s       position,       taken      as   a

whole, was “substantially justified.”

       The record, however, fails to support Mortensen’s position.

The Commissioner adopted the ALJ’s decision before the Appeals

Council and repeated the same position in the district court.

See     Agency     Record        6-9;     J.A.     49-54.          In     addition,      the

Commissioner       specifically          defended    the    reasonableness         of    the

ALJ’s conclusions in his brief filed in the district court.                              For

example, the Commissioner argued that “the ALJ reasonably noted

that the limitations Dr. Cunningham assessed were inconsistent

                                             10
with other opinions of record,” such that it was appropriate to

discount     Dr.    Cunningham’s          diagnosis.                 The   Commissioner        also

asserted that inconsistencies in Mortensen’s testimony “provided

a     reasonable    basis        for     the     ALJ       to    discredit        [Mortensen’s]

subjective     complaints”          of    pain.            Notwithstanding          Mortensen’s

contention, it is apparent that the Commissioner did not fail to

defend the legitimacy of his positions “as an inclusive whole.”

Jean, 496 U.S. at 162.

       At   bottom,        this    case        presents          a    mixed       administrative

record.       Dr.       Kidwai     and     another          specialist        concluded        that

Mortensen was capable of a slightly wider range of functional

capabilities        than     what        Dr.     Cunningham           had     found.           These

differences        of    opinion         were     not       merely         academic,      as    Dr.

Cunningham’s       diagnosis       would        have      disqualified        Mortensen        from

performing     “light       work,”       20     C.F.R.          § 404.1567(b),        while     the

other diagnoses might not have.                           Because there existed small,

but potentially meaningful inconsistencies in the medical record

and    in   Mortensen’s      various          statements          about     the    pain   he    was

experiencing, the district court did not abuse its discretion in

concluding that the Commissioner’s position was “substantially

justified.”

                                                III

       Finally,     Mortensen          devotes        a    significant        portion     of     his

brief to the question of whether the district courts could deny

                                                11
attorneys fees under the EAJA when the requested fees included

fees charged by an out-of-state attorney who was not licensed in

South Carolina, nor admitted to practice there pro hac vice.        We

do not, however, reach this issue in light of our conclusion

that the district court did not abuse its discretion in denying

attorneys   fees   because   the        Commissioner’s   position   was

substantially justified.

                                                              AFFIRMED




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