                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-1700


MAURICE E. MEYER, III,

                Plaintiff - Appellant,

           v.

CAROLYN W. COLVIN, Acting      Commissioner   of     the   Social
Security Administration,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:08-cv-03828-JFA)


Argued:   May 14, 2014                    Decided:    June 10, 2014


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge King and Judge Duncan joined.


ARGUED: Robertson H. Wendt, Jr., LAW OFFICES OF ROBERTSON WENDT,
North Charleston, South Carolina, for Appellant.         Jennifer
Randall, SOCIAL SECURITY ADMINISTRATION, Denver, Colorado, for
Appellee. ON BRIEF: William N. Nettles, United States Attorney,
Marshall Prince, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:

      Social Security claimant Maurice Meyer appeals the district

court’s denial of his motion for attorney’s fees under the Equal

Access to Justice Act (“the Act”).                   The Act provides that a

party who prevails in litigation against the United States is

entitled to an award of attorney’s fees unless “the position of

the   United     States    was   substantially        justified”   or    “special

circumstances make an award unjust.”                28 U.S.C. § 2412(d)(1)(A).

The   district     court    determined       that    Meyer   prevailed   in   his

lawsuit against the Commissioner of Social Security, but that

attorney’s fees were unwarranted because the Commissioner had

pursued a substantially justified position.                    For the reasons

that follow, we affirm.



                                       I.

      Upon suffering a spinal injury in 2004, Meyer applied for

Social    Security   disability     benefits.          An    administrative   law

judge (“ALJ”) denied the claim, reasoning that although Meyer

suffered from a degenerative back condition, he retained the

capacity to work.

      In support of his conclusion, the ALJ noted that between

August 2005 and June 2006, Meyer reported improvements in his

overall    condition,      including     greater       mobility    and    reduced

reliance on pain medication.           In addition, numerous physicians

                                         2
who   treated      Meyer      indicated    that       he   was    in   “no        apparent

distress,” that he appeared to be “generally healthy,” and that

he could “ambulate independently.”                   To be sure, Meyer offered a

report    by    Dr.   Barry    Weissglass,      a     physician    who,      at   Meyer’s

request,       performed      an   “independent        occupational       evaluation”

concluding that Meyer was unable to work outside the home.                              The

ALJ did not find the report persuasive, however, noting that Dr.

Weissglass      was    not    Meyer’s     treating      physician      and    that      his

findings conflicted with the weight of the evidence. 1

      Meyer     sought       review   from      the    Social     Security        Appeals

Council.       Along with his request for review, Meyer submitted

additional evidence, including a letter from Dr. Byron Bailey,

the   physician       who    performed    Meyer’s       surgery.       Although         Dr.

Bailey had not treated Meyer in the last two years, the doctor

claimed that Meyer suffered from “chronic, debilitating . . .

pain[,]    which      was    anticipated       due    to   the    magnitude        of   his

injury.”       Dr. Bailey further opined that Meyer would “continue

to require frequent follow-up and medical management” and would

likely    require      additional       surgeries.         At    the   close       of   his

letter, Dr. Bailey noted his agreement “with the majority of

[Dr. Weissglass’s] findings.”



      1
       For a more complete recitation of the facts, see Meyer v.
Astrue, 662 F.3d 700 (4th Cir. 2011).


                                           3
      The Appeals Council denied Meyer’s request for review.                                   In

evaluating     the     claim,       the    Council         stated    that    it    found      Dr.

Bailey’s letter to present “new and material” evidence, and so

incorporated        the     letter        into       the   record.          See    20    C.F.R.

§ 404.970(b).        Nevertheless, after considering all the evidence

-- including the letter -- the Council declined to review the

ALJ’s decision.            In light of the Council’s pronouncement, the

ALJ’s decision became the “final decision” of the Commissioner

of Social Security.

      Meyer     then       sought    review          in    federal    court.            In    his

complaint,     Meyer       asserted       that       the   Appeals    Council       erred      by

failing to make “specific findings of fact” explaining why Dr.

Bailey’s letter did not merit considerable weight and attention.

Meyer also argued that “substantial evidence” failed to support

the Commissioner’s decision.                     Specifically, he contended that

the ALJ’s rejection of Dr. Weissglass’s findings could not stand

in   light    of    Dr.     Bailey’s        conclusions.            Additionally,            Meyer

claimed      that    the    ALJ     ignored          the    fact    that     his    treatment

schedule would require him to miss so much work that he was

effectively unemployable. 2



      2
       Meyer conceded at oral argument that he failed to raise
this argument with specificity before the ALJ.    He nonetheless
claims that the ALJ erred by failing to address the argument sua
sponte.


                                                 4
     In response, with respect to the failure of the Appeals

Council to address Dr. Bailey’s letter, the Commissioner argued

that federal regulations did not require the Council to explain

its evaluation of Meyer’s application in detail.                        See 20 C.F.R.

§ 404.970(b).     Accordingly, the Commissioner maintained that the

Council’s summary affirmance of the ALJ did not violate the law.

     As to the merits of Meyer’s application, the Commissioner

argued    that      “substantial           evidence”           did      support        the

Commissioner’s     decision.         The       Commissioner      pointed       out    that

copious   medical        evidence      indicated         that     Meyer       had    made

significant improvements since his surgery.                     Dr. Bailey’s letter

did not alter this analysis because the letter was not “new and

material” evidence subject to administrative review:                          Dr. Bailey

had ended his relationship with Meyer nearly two years before he

authored the letter, and his findings simply echoed those of Dr.

Weissglass.       See    Wilkins    v.    Sec’y,       Dep’t    of    Health    &    Human

Servs.,   953   F.2d     93,   95-96     (4th    Cir.    1991)       (explaining     that

evidence is “new” if it is not duplicative, and “material” if

there is a reasonable probability that the evidence would change

the outcome).      The Commissioner further argued that the failure

to address Meyer’s treatment schedule did not constitute error

because   Meyer    failed      to   present      evidence       that    his     doctor’s

appointments     would    prevent      him      from    maintaining       a    flexible,

alternative work schedule.

                                           5
       The district court agreed with the Commissioner.                         See Meyer

v.    Astrue,    No.     3:08-cv-3828-JFA-JRM,           2010       WL    1257626    (D.S.C.

Mar. 25, 2010) (unpublished).                  On appeal, the parties reiterated

their    earlier       arguments,       with    one    important         exception.        The

Commissioner no longer justified the Commissioner’s decision on

the ground that Dr. Bailey’s letter was not new or material.

Instead, the Commissioner now conceded that the letter was new

and   material        evidence,    but    argued       that    it    was    not important

enough to undermine the Commissioner’s decision.                           As before, the

Commissioner          noted    that     Dr.    Bailey       had     not    treated    Meyer

recently and that his findings were duplicative of those of Dr.

Weissglass.

       In a published opinion, we affirmed in part and reversed in

part.     Meyer, 662 F.3d at 702.                     We agreed with the district

court and the Commissioner that the Appeals Council was under no

obligation       to    articulate        its    rationale         for     denying    Meyer’s

request    for    review.         Id.    at    704–06.         We    noted    that    agency

regulations require the Council to explain its analysis only if

it    “grant[s]       [an     applicant’s]      request       [for      review],”    and    in

Meyer’s    case,       the     Council    denied      the     request.        Id.    at    705

(quoting 20 C.F.R. § 404.967).

       With respect to the merits, however, we held that, based on

the record before us, we could not determine whether substantial

evidence supported the Commissioner’s decision.                              Id. at 707.

                                               6
Accordingly, we remanded the case to the district court with

instructions to remand to the ALJ so that he could consider and

determine the import of Dr. Bailey’s letter.                             Id.        We indicated

that, while doing so, the ALJ should also consider evidence of

Meyer’s absenteeism.              Id. at 707 n.3 (citing Newton v. Apfel,

209 F.3d 448, 459 (5th Cir. 2000)).

       After the case was remanded, Meyer moved for attorney’s

fees       under    the    Act.     The       district         court   concluded       that    our

remand       to    the    ALJ   meant    that          Meyer    prevailed      in    his    action

against the Commissioner.                     See Shalala v. Schaefer, 509 U.S.

292, 300-02 (1993).               The court held, however, that fees were

unwarranted         because       Meyer’s       case       was    “one      of      those   close

decisions          about    which       reasonable         persons       could,       and     did,

disagree.”           As    a    result,       it       could     not   be    said      that    the

Commissioner         had    pursued       a    “substantially            [un]justif[iable]”

position.

       Meyer noted a timely appeal. 3



                                               II.

       The Equal Access to Justice Act provides that:


       3
       After Meyer filed his motion for attorney’s fees, Carolyn
Colvin replaced Michael Astrue as acting Commissioner of Social
Security.   For clarity, we continue to use masculine pronouns,
as it is the litigation position of Commissioner Astrue, not
acting Commissioner Colvin, that is at issue in this case.


                                                   7
     [A] court shall award to a prevailing party[,] other
     than the United States[,] fees and other expenses
     . . . incurred by that party in any civil action . . .
     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) (emphasis added).

     The Act does not define the term “substantially justified.”

The Supreme Court has recognized, however, that the substantial-

justification test is one of “reasonableness in law and fact.”

Pierce v. Underwood, 487 U.S. 552, 564-65 (1988).                That is,

“[t]he Government’s position is substantially justified if it is

. . . ‘justified to a degree that could satisfy a reasonable

person.’”   Cody v. Caterisano, 631 F.3d 136, 141 (4th Cir. 2011)

(quoting Pierce, 487 U.S. at 565).          Of course, the Government

need not prevail in an action for its position to have been

substantially   justified.       Rather,   the   Government    will     avoid

paying   fees   as   long   as   “a   reasonable   person     could     [have

thought]” that its litigation position was “correct.”                 Pierce,

487 U.S. at 566 n.2.

     “[In] determining whether the [G]overnment’s position in a

case is substantially justified, we look beyond the issue on

which the petitioner prevailed to determine, from the totality

of the circumstances, whether the [G]overnment acted reasonably

in causing the litigation or in taking a [particular] stance



                                      8
during the litigation.”             Roanoke River Basin Ass’n v. Hudson,

991 F.2d 132, 139 (4th Cir. 1993).

      In doing so, it is appropriate to consider the
      reasonable overall objectives of the [G]overnment and
      the   extent   to    which   the   alleged   governmental
      misconduct departed from them. . . .         Although an
      unreasonable stance taken on a single issue may . . .
      undermine   the    substantial   justification   of   the
      [G]overnment’s position, that question can be answered
      only by looking to the stance’s effect on the entire
      civil action.     [Thus,] while a party may become a
      “prevailing party” on a single substantive issue
      . . . , it does not automatically follow that the
      [G]overnment’s position in the case as a whole is not
      substantially justified.

Id.

      The   Government      bears    the        burden      of    proving      substantial

justification in the first instance.                   Crawford v. Sullivan, 935

F.2d 655, 658 (4th Cir. 1991).                    Once the district court has

determined the propriety of a fee, we review its decision for an

abuse of discretion.         Hyatt v. Barnhart, 315 F.3d 239, 245 (4th

Cir. 2002).



                                        III.

                                         A.

      Meyer   does    not   contend     that         each   and       every    one    of   the

Commissioner’s       positions      lacked       a    substantial           justification.

See   Appellant’s     Br.   13;     Reply       Br.   1.         On   the     contrary,     he

concedes    that   the   Commissioner           reasonably        argued       that   Social

Security    regulations      do   not   require            the    Appeals      Council      to

                                            9
articulate its rationale for denying an applicant’s request for

review.   See Appellant’s Br. 13; Reply Br. 1.                  This concession

seems inevitable since the Commissioner prevailed on this issue.

See Meyer, 662 F.3d at 706. 4

      What Meyer contends is that the Commissioner unreasonably

maintained     that       “substantial           evidence”     supported        the

Commissioner’s       decision.      See     Appellant’s       Br.    13–16.     In

particular,      Meyer     argues     that        the    Commissioner         acted

unreasonably    in    asserting     that    Dr.    Bailey’s    letter     did   not

require reversal or remand to the ALJ.                  Id. at 13–15.         Meyer

contends that, because Dr. Bailey was his treating physician,

the doctor’s recommendation should have received significant, if

not controlling, weight.          See 20 C.F.R. § 404.1527(c)(2).                In

addition, Meyer argues that the Commissioner erred in defending

the   ALJ’s   failure    to   address      his    treatment    schedule.        See

Appellant’s Br. 16.       According to Meyer, the fact that he would

miss so much work to attend his various appointments tended to

show that he was unfit for full-time employment.                    To comply with

the substantial-evidence standard, Meyer asserts, the ALJ should

have considered this issue.         See Universal Camera Corp. v. Nat’l


      4
       Meyer has also conceded that the Commissioner’s position
throughout the administrative proceedings was reasonable.   See
United States v. 515 Granby, LLC, 736 F.3d 309, 315 (4th Cir.
2013) (holding that the Government’s pre-litigation position is
relevant to the attorney’s fees analysis).


                                      10
Labor     Relations        Bd.,      340     U.S.     474,    488        (1951)     (“The

substantiality of evidence must take into account whatever in

the record fairly detracts from its weight.”).

      We disagree.          First, it is difficult to conclude that the

Commissioner’s           litigation        position    was        not     substantially

justified when Meyer himself concedes that the Commissioner was

correct with respect to one of the case’s two issues.                                The

Appeals Council’s obligation to explain its rationale was an

important issue that had divided lower courts before we resolved

the matter in Meyer’s appeal.                Compare Jackson v. Barnhart, 368

F. Supp. 2d 504, 508 n.2 (D.S.C. 2005) with Harmon v. Apfel, 103

F. Supp. 2d 869, 873 (D.S.C. 2000).                   In determining whether the

Commissioner advanced a reasonable litigation position, we must

consider the case as a whole, see Roanoke River Basin, 991 F.2d

at 139, and here, the Commissioner was right on one of two

important issues.

      Even    as     to    the     substantial-evidence        issue,      the    matter

before us was hardly clear-cut.                   The Commissioner argued that

Dr. Bailey’s letter was of limited utility because Dr. Bailey

had     not   treated       Meyer     recently,       and    in     any    event,    the

information     he       provided    was    duplicative      of    Dr.     Weissglass’s

findings.       We       believe    that    a    reasonable       person    could   have

thought that this argument would prevail.                     Both Social Security

regulations        and     our     case    law    establish        that    a   treating

                                            11
physician’s opinion is to be accorded comparatively less weight

if    it   is    based       on   the     physician’s         limited       knowledge      of   the

applicant’s        condition         or    conflicts          with     the    weight       of   the

evidence.        Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996); 20

C.F.R. § 404.1527(c).                   Dr. Bailey’s letter falls into both of

these categories.

       Finally,         with      respect       to      the        argument    about      Meyer’s

treatment        schedule,         we    find     nothing          unreasonable       about     the

Commissioner’s          position.          Meyer        himself       acknowledged        at    oral

argument        that    he    failed      to    raise        the    issue    with    specificity

before the ALJ.           As the Eighth Circuit has noted, an ALJ “is not

obliged to investigate a claim not presented at the time of the

[benefits] application . . . and not offered at the hearing as a

basis for disability.”                  Halverson v. Astrue, 600 F.3d 922, 934

(8th    Cir.     2010).           Accordingly,         the    Commissioner          did   not   act

unreasonably in defending the ALJ’s decision.

                                                  B.

       Urging a contrary result, Meyer finds it significant that

the Commissioner changed his position regarding the import of

Dr.     Bailey’s         letter.            Before           the     district       court,      the

Commissioner argued that the letter was not “new and material”

evidence entitled to consideration by the Appeals Council; but

on     appeal,     he        conceded      that        the    Appeals       Council       properly

considered the evidence.                   Given this change of position, Meyer

                                                  12
argues that the Commissioner’s original defense cannot meet the

substantial-justification standard.

       We are unpersuaded.           To be sure, the Commissioner initially

staked out a curious position.                   In asserting that Dr. Bailey’s

letter    did    not    qualify      as   “new    and    material”      evidence,     the

Commissioner implicitly argued that the Appeals Council erred in

considering the letter.              See 20 C.F.R. § 404.970(b) (permitting

the    Appeals       Council    to   consider     “new    and    material”      evidence

submitted for the first time on appeal).                          But to show that

substantial evidence supported the Commissioner’s decision, it

sufficed for the Commissioner simply to show that the letter,

though    material       to    Meyer’s     application,        did     not   impugn   the

integrity of the Commissioner’s decision.                      See Universal Camera,

340    U.S.     at    477     (defining    “substantial         evidence”      as   “such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion”).                In other words, it would have been

easier for the Commissioner to concede that the letter contained

“new    and   material”        information,       but    to    argue    that   this   new

information was not significant enough to require reversal of

the Commissioner’s decision.                We note that this was precisely

the argument the Commissioner made before us on appeal.

       Despite the oddity of the Commissioner’s original position,

his misstep does not merit a fee award.                       For the Commissioner’s

change of position did not alter the core of his argument.                             At

                                            13
every stage, in every brief, the Commissioner argued that Dr.

Bailey’s letter was of limited utility given that the doctor

last examined Meyer years before his letter and his findings

were duplicative of those of Dr. Weissglass.                       This position was

a    reasonable      one,    and    any   errors        the   Commissioner       made    in

articulating it are not significant for purposes of a fee award

under   the    Act.         See    Roanoke    River      Basin,    991    F.2d    at    139

(holding that in determining whether the Government’s position

was substantially justified “it is appropriate to consider the

reasonable overall objectives of the [G]overnment and the extent

to    which    the    alleged      governmental         misconduct       departed      from

them”).



                                          IV.

       For    all    of   these    reasons,       the   judgment    of    the    district

court is

                                                                                AFFIRMED.




                                             14
