                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 07a0290n.06
                             Filed: April 25, 2007

                                             No. 06-5531

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


MADRO NOBLE,                                           )
                                                       )
         Plaintiff-Appellant,                          )
                                                       ) ON APPEAL FROM THE UNITED
v.                                                     ) STATES DISTRICT COURT FOR THE
                                                       ) EASTERN DISTRICT OF KENTUCKY
JO ANNE B. BARNHART,                                   )
COMMISSIONER OF SOCIAL                                 )
SECURITY                                               )
                                                       )
         Defendant-Appellee.                           )



Before: MOORE, GIBBONS, Circuit Judges, and SARGUS, District Judge.*

         JULIA SMITH GIBBONS, Circuit Judge.

         Plaintiff-appellant Madro Noble appeals an order of the district court denying his motion for

attorney’s fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (“EAJA”). The

district court found that the Commissioner’s position was substantially justified and therefore a grant

of attorney’s fees was unwarranted. We agree and accordingly affirm the judgment of the district

court.

                                                  I.



         *
         The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern
District of Ohio, sitting by designation.

                                                  1
       Noble filed applications for a period of disability, disability insurance, and supplemental

security income on January 26, 2001. Noble alleged a disability beginning in August 1997 and

based his claim on anxiety, nervousness, depression, peripheral neuropathy, and carpal tunnel

syndrome. The Social Security Administration (“SSA”) denied Noble’s application in April 2001.

An Administrative Law Judge (“ALJ”) subsequently found that Noble was not disabled and denied

his benefits application in November 2002. Noble appealed pursuant to 42 U.S.C. § 405(g) to the

district court seeking review of that denial. During the course of his appeal, Noble filed a subsequent

application, in November 2003, and the SSA approved his application and granted disability benefits

commencing on November 8, 2002.

       On appeal, Noble submitted additional evidence to the district court, including the favorable

November 2003 decision. The district court referred the action to a magistrate judge and the

magistrate judge determined that the action should be remanded for proceedings to determine

whether the Commissioner relied on “much the same evidence [in November 2003] that had been

generated earlier” in awarding benefits pursuant to the subsequent application. The Commissioner

did not object to remanding the case, and the district court ultimately remanded pursuant to sentence

six of 42 U.S.C. § 405(g), which allows the court to remand for consideration of newly discovered

evidence.1 The Commissioner was instructed to consider the newly submitted evidence on remand

and otherwise reconsider the ALJ’s decision.



       1
        Sentence six of 42 U.S.C. § 405(g) provides, in pertinent part, that “[t]he court may, on
motion of the Commissioner of Social Security made for good cause shown before the
Commissioner files the Commissioner’s answer, remand the case to the Commissioner of Social
Security for further action by the Commissioner of Social Security . . . .”

                                                  2
       On remand in December 2005, the ALJ held a new hearing and ultimately found Noble had

been disabled since January 16, 2001. Noble then filed a motion to submit the ALJ’s partially

favorable decision to the district court and a motion for EAJA fees under 28 U.S.C. § 2412(d). The

district court granted the motion to submit the favorable decision but denied Noble’s motion for

attorney’s fees. The court found that the partially favorable judgment of December 2005 was based

on new evidence that was unavailable when Noble’s claim was initially denied and that the fact that

new evidence yielded a favorable result for Noble did not imply that the government’s initial

position, which was consistent with information available at the time, was not substantially justified.

The district court accordingly found the government’s position substantially justified and therefore

denied Noble’s motion for attorney’s fees. Noble filed a timely notice of appeal.

                                                  II.

       We review an award of attorney fees under the EAJA for an abuse of discretion. Jankovich

v. Bowen, 868 F.2d 867, 869 (6th Cir. 1989). A court “abuses its discretion when it relies on clearly

erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal

standard.” Phelan v. Bell, 8 F.3d 369, 373 (6th Cir. 1993). Under this standard, the district court’s

factual findings are reviewed for clear error, while its legal conclusions are reviewed de novo. Perket

v. Sec’y of Health & Human Servs., 905 F.2d 129, 132 (6th Cir. 1990).

                                                 III.

       Noble seeks reimbursement of his payment for legal work performed at the federal district

court level and subsequent legal work performed before the Commissioner after the district court’s

July 2004 remand. The EAJA provides that a court shall award fees and other expenses if (1) Noble


                                                  3
is a “prevailing party”; (2) the position of the United States was not “substantially justified”; and (3)

there are no special circumstances that make an award unjust. 28 U.S.C. § 2412(d)(1)(A). The only

issue in this appeal is whether the government’s position was substantially justified; if the

government’s original litigation position was substantially justified, Noble is not entitled to benefits

under the EAJA. Marshall v. Comm’r of Soc. Sec., 444 F.3d 837, 842 (6th Cir. 2006).

        The government’s position was substantially justified if it was “justified in substance or in

the main–that is, justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood,

487 U.S. 552, 565 (1988) (internal question marks omitted). The Supreme Court has equated this

standard with a reasonable basis both in law and fact, and the position of the government will be

deemed to be substantially justified if there is a genuine dispute, or if reasonable people could differ

as to the appropriateness of the contested action. Id. The government’s position “can be justified

even though it is not correct . . ., and it can be substantially (i.e., for the most part) justified if a

reasonable person could think it correct.” Id. at 566 n.2. As this court has noted, “[t]he fact that we

f[ind] that the Comissioner’s position was unsupported by substantial evidence does not foreclose

the possibility that the position was substantially justified. Indeed, Congress did not want the

‘substantially justified’ standard to be read to raise a presumption that the Government position was

not substantially justified simply because it lost the case . . . .” Howard v. Barnhart, 376 F.3d 551,

554 (6th Cir. 2004) (internal citations and quotation marks omitted). When evaluating the

Commissioner’s position, we consider the ALJ’s decision as part of the Commissioner’s pre-

litigation conduct. See Peck v. Comm’r of Soc. Sec., 165 F. App’x 443, 446 (6th Cir. 2006).

        We find that there is ample evidence demonstrating that the Commissioner’s original


                                                   4
litigation position was substantially justified by the facts of Noble’s case. See Pierce, 487 U.S. at

565 (noting that there must be a reasonable connection between the facts and the Commissioner’s

legal theory). As an initial matter, the ALJ found in his 2002 decision that Noble was able to handle

some degree of stress, could lift and carry up to twenty pounds, could sit for a six-hour workday, and

could complete a limited range of light work activities. The ALJ accordingly found that Noble was

not “disabled” as defined by the SSA. This conclusion was consistent with the statement of

numerous treating and non-treating physicians, including Drs. Levan, Coleman, and Spencer, all of

whom found that Noble was capable of performing some degree of work, provided it did not involve

repetitive work with his hands or strenuous activity. This decision itself—agreeing with the

Commissioner in denying benefits to Noble—suggests that the Commissioner’s decision was

substantially justified. Cf. Pierce, 487 U.S. at 569 (acknowledging that winning or losing below is

not dispositive with regard to whether the government’s position is substantially justified but that

it can be persuasive: “a string of losses [in the lower courts] can be indicative; and even more so a

string of successes”).

       Noble, however, contends that the second ALJ decision, which was favorable to Noble, was

not based on new medical evidence and that this implies that the government’s original position was

not substantially justified. We disagree. When Noble sought review of the 2002 ALJ decision, he

filed an “Additional Argument in Support of an Award of Benefits” and attached the partially

favorable 2005 decision along with numerous medical records and insurance forms. The district

court remanded the case with the explicit instruction that the Commissioner “consider the newly

submitted evidence on remand.” The second ALJ (in 2005) held a new hearing at which Noble


                                                  5
appeared and testified, and the List of Exhibits attached to the 2005 ALJ decision shows several

documents that were not available for the 2002 decision, including various medical records and

reports. Indeed, in finding for Noble the ALJ explicitly noted that “additional medical evidence

received in the course of developing claimant’s case for review at the hearing, as well as evidence

in the form of credible evidence at the hearing, consistent with medical evidence in the record

justifies a conclusion that the claimant’s impairments are more limiting than was concluded by the

state examiners.” Finally, the district court’s determination that the government’s original position

was substantially justified lends further credence to the government’s argument. See Pierce, 487

U.S. at 559 (noting that 28 U.S.C. § 2412(d)(1)(A) provides that attorney’s fees shall be awarded

“unless the court finds that the position of the United States was substantially justified. This

formulation, as opposed to simply ‘unless the position of the United States was substantially

justified,’ emphasizes the fact that the determination is for the district court to make, and thus

suggests some deference to the district court on appeal”) (internal citation omitted).

       Based on our review of the record and in light of our deferential standard of review, we

cannot conclude that the district court abused its discretion. The court appropriately considered

whether the government’s position was reasonable in law and fact, under circumstances as to which

reasonable minds could differ. Id. at 565. Noble has put forth nothing that leads us to draw a

“definite and firm conviction that the trial court committed a clear error of judgment” in finding that

the Commissioner’s position was substantially justified. See Bowling v. Pfizer, Inc., 102 F.3d 777,

780 (6th Cir. 1996). Accordingly, we find no abuse of discretion.

       The judgment of the district court is affirmed.


                                                  6
