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

                            FOR THE TENTH CIRCUIT                         June 18, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
GINA MURDOCK,

             Plaintiff-Appellant,

v.                                                          No. 12-5191
                                                  (D.C. No. 4:09-CV-00518-TLW)
CAROLYN W. COLVIN, Acting                                   (N.D. Okla.)
Commissioner of the Social Security
Administration,*

             Defendant-Appellee.


                            ORDER AND JUDGMENT**


Before TYMKOVICH, ANDERSON, and MATHESON, Circuit Judges.


      Gina Murdock applied for Social Security disability and Supplemental

Security Income benefits in 2007. The agency denied her application. Following her

unsuccessful attempts for review before an administrative law judge (“ALJ”) and the

*
       In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure,
Carolyn W. Colvin is substituted for Michael J. Astrue as the defendant-appellee in
this action.
**
      After examining the briefs and appellate record, this panel has determined
unanimously to grant 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
ordered 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
district court, she convinced this court that the ALJ had failed to make the proper

findings at step three of the sequential process for evaluating disability claims. We

remanded for further proceedings. See Murdock v. Astrue, 458 F. App’x 702, 705

(10th Cir. 2012).

      The agency next granted Ms. Murdock’s application for benefits, but the

district court denied her attorney fees application under the Equal Access to Justice

Act (EAJA), 28 U.S.C. § 2412. She appeals from that denial. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.

      In evaluating an EAJA fee application, the district court must determine

whether the government’s litigating position was “substantially justified.” See

28 U.S.C. § 2412(d)(1)(A). It must be “reasonable even if wrong.” Madron v.

Astrue, 646 F.3d 1255, 1257 (10th Cir. 2011) (emphasis in original); see also Pierce

v. Underwood, 487 U.S. 552, 564-65 (1988) (defining “substantially justified” as

“justified in the substance or in the main—that is justified to a degree that could

satisfy a reasonable person.” (emphasis added)). We review this determination for

abuse of discretion. Id. at 559.

      At step three, an ALJ must support, with findings based on the evidence, its

decision that the claimant’s impairments failed to meet or equal a listed impairment.

See Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). The government

argued that the ALJ did so. Alternatively, the government argued that any error in

failing to make findings was harmless in light of findings the ALJ made at later steps.


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      For its harmless-error argument, the government relied on Fischer-Ross v.

Barnhart, 431 F.3d 729, 735 (10th Cir. 2005). In that case, we found a step three

error to be harmless in light of findings the ALJ made regarding the claimant’s

residual functional capacity (RFC) conclusively negating that she could meet the

relevant listing. In Ms. Murdock’s case, the issue was whether she had an inability to

ambulate, a necessary requirement for Listing 1.02. The government argued that the

ALJ’s RFC finding that Ms. Murdock could perform sedentary work, which requires

standing and walking for two hours in an eight-hour day, and the ALJ’s additional

finding that she may require a walker, but only for long distances, negated that she

qualifies for Listing 1.02.

      Although we disagreed with this argument in the underlying merits appeal, the

district court determined that the government’s position was substantially justified

given the evidence in the case and denied the request for EAJA fees. We cannot

conclude that this decision fell outside “the bounds of the rationally available choices

. . . given the facts and the applicable law.” Madron, 664 F.3d at 1257 (internal

quotation marks omitted). Accordingly, we affirm.

                                                Entered for the Court


                                                Scott M. Matheson
                                                Circuit Judge




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