                                                                             FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                    January 15, 2008
                            FOR THE TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                      Clerk of Court

    WINFRED VELTMAN,

                Plaintiff-Appellant,

    v.                                                  No. 07-4075
                                                 (D.C. No. 2:04-CV-993-TS)
    MICHAEL J. ASTRUE,                                   (D. Utah)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before HOLMES, HOLLOWAY, and SEYMOUR, Circuit Judges.



         “The Equal Access to Justice Act [EAJA] provides for the award of fees

and expenses to the prevailing party in a civil action against the Federal

Government, unless the position of the United States was substantially justified.”

Harris v. R.R. Ret. Bd., 990 F.2d 519, 520 (10th Cir. 1993) (quotations omitted).



*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
In this social security disability case, the district court denied the plaintiff’s

request for an EAJA fee, finding that the Commissioner of Social Security

(Commissioner) had demonstrated that his position was substantially justified.

Because this finding did not represent an abuse of discretion, we affirm.

                                        FACTS

      The plaintiff, Winfred Veltman, filed applications for social security

disability benefits and Supplemental Security Income benefits in February 2002,

alleging that he became disabled in 2001 due to depression, anxiety, and back and

neck problems. The agency denied his applications initially and on

reconsideration. Mr. Veltman obtained a hearing before an administrative law

judge (ALJ), who upheld the denial of his applications. He then appealed

administratively to the Appeals Council. The Appeals Council denied review of

the ALJ’s decision.

      Mr. Veltman thereafter sought review of the ALJ’s decision in federal

district court. He asserted that the Commissioner had erred in two respects.

First, he claimed, the ALJ failed to properly consider the opinions of the

vocational expert (VE) hired to testify at his hearing. The district court rejected

this argument, finding that the ALJ’s analysis of the VE’s opinion was adequate.

Second, Mr. Veltman argued that the ALJ failed to conduct a proper analysis of

the opinions of his treating psychiatrist, Dr. Hallett. The district court determined

that “[l]acking a discussion or findings concerning Dr. Hallett’s opinions,” it “had

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no way of assessing whether the ALJ applied the correct legal standards with

respect to the appropriate weight to be assigned to Dr. Hallett’s opinion as a

treating physician.” Aplt. App., Vol. II, at 405. It therefore remanded the case to

the ALJ to consider and make further findings concerning Dr. Hallett’s opinions.

      Mr. Veltman’s counsel thereafter petitioned the district court for an award

of EAJA fees. The district court denied his petition, concluding that the

Commissioner had demonstrated that his position was substantially justified.

                                    ANALYSIS

      An agency position is substantially justified for purposes of the EAJA if it

is “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)

(quotation omitted). In other words, the government’s position must have had a

reasonable basis both in law and fact. See id. We review the district court’s

determination that the government’s position was substantially justified for an

abuse of discretion. Id. at 559; Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir.

1995). “An abuse of discretion occurs when the district court bases its ruling on

an erroneous conclusion of law or relies on clearly erroneous fact findings,”

Kiowa Indian Tribe of Okla. v. Hoover, 150 F.3d 1163, 1165 (10th Cir. 1998), or

when the district court’s decision is “arbitrary, capricious or whimsical, or results

in a manifestly unreasonable judgment,” Moothart v. Bell, 21 F.3d 1499, 1504-05

(10th Cir. 1994) (quotations omitted).

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      The district court gave three reasons for its finding that the Commissioner

had demonstrated that his position was substantially justified. Although two of

these reasons are inadequate to justify the denial of an EAJA fee, the third stands

as an independent basis for the district court’s decision, and does not represent an

abuse of discretion. We will therefore affirm the denial of an EAJA fee.

      The district court first found that “viewing the action as a whole, the

Commissioner’s position was reasonable as this Court found in her favor [on] one

of the two issues before it.” Aplt. App., Vol. I, at 8. The issue on which the

Commissioner prevailed, however, was neither related to the issue that resulted in

a remand, nor did it provide a separate basis for affirming the denial of benefits.

As we recently explained, the district court cannot use the Commissioner’s

success on such an unrelated issue as a basis for denying the claimant an EAJA

fee. Hackett v. Barnhart, 475 F.3d 1166, 1173 n.1 (10th Cir. 2007).

      The district court next stated that an EAJA fee was inappropriate because

“the Court merely remanded Plaintiff’s action for the ALJ to further elaborate on

a deficiency in the record which precluded proper review by this Court, as

opposed to finding that Plaintiff was entitled to disability benefits.” Aplt. App.,

Vol. I, at 8. The parties do not dispute that the district court’s remand was a

“sentence four remand” for further consideration by the ALJ. 1 Nothing in our


1
      “Sentence four” remands are authorized under the fourth sentence of
                                                                   (continued...)

                                         -4-
cases indicates that a claimant’s success in obtaining only a sentence four remand

for further proceedings, as opposed to an award of benefits, provides an adequate

reason for concluding that the Commissioner’s position was substantially

justified. Rather, we have frequently indicated that an EAJA fee award may be

appropriate in a sentence four remand case. See, e.g., Shubargo v. Astrue,

498 F.3d 1086, 1088 (10th Cir. 2007) (remanding for determination of whether

Commissioner’s position was substantially justified); Hackett, 475 F.3d at

1175-76 (reversing denial of EAJA fee and remanding for proper calculation). 2

      This brings us to the district court’s third and final reason for denying an

EAJA fee: “the Court is convinced by the Commissioner’s arguments that the ALJ

considered, at least to some degree, the opinion of Dr. Hallet[t].” Aplt. App.,

Vol. I, at 8. Mr. Veltman argues that the district court improperly relied on this

reason because (1) it is inconsistent with the language of the remand order, which

notes the ALJ’s failure to give more than scant mention to Dr. Hallett’s opinions;

(2) “an ALJ’s failure to properly consider a treating source opinion is error,”


1
 (...continued)
42 U.S.C. § 405(g), which reads as follows: “The court shall have power to enter,
upon the pleadings and transcript of the record, a judgment affirming, modifying,
or reversing the decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.”
2
      The converse might perhaps be a cognizable factor, however. If the district
court had specifically remanded for an award of benefits, that might provide an
indication that the Commissioner’s position in opposing such benefits was not
substantially justified.

                                        -5-
Aplt. Opening Br. at 18; and (3) “it cannot be reasonable for an ALJ to not

properly address a treating source statement,” id. at 20.

      These arguments do not demonstrate that the district court abused its

discretion in finding the agency’s position substantially justified. The mere fact

that there was error in the ALJ’s decision does not make the agency’s position

unreasonable. An agency’s position can be justified even though it is not correct.

Hackett, 475 F.3d at 1172. As the district court noted in its order denying the

EAJA fee, the ALJ did discuss Dr. Hallett’s opinions to some extent. Moreover,

the ALJ appears to have given considerable weight to the evidence in the record

concerning Mr. Veltman’s mental impairments, including Dr. Hallett’s opinions.

      There was serious question in this case concerning the value of

Dr. Hallett’s opinions to the benefits adjudication process. Dr. Hallett did not

discuss the specific occupational limitations posed by Mr. Veltman’s alleged

mental impairments. See Aplt. App., Vol. I, at 124, 174. Mr. Veltman’s counsel

acknowledged as much at oral argument before the district court. Id., Vol. II, at

383. At one point, the agency apparently sent Dr. Hallett a report to complete,

but he chose to respond in narrative form instead. See id., Vol. I, at 124.

      More well-defined opinions in the record came from the agency

consultants, who basically imposed no restrictions on Mr. Veltman’s functioning

due to mental impairments. Id. at 150-63; 168-73. The ALJ did not accept these

agency assessments uncritically. In fact, her assessment of Mr. Veltman’s mental

                                         -6-
residual functional capacity is more consistent with Dr. Hallett’s descriptive

narrative than with the consultants’ specific recommendations. Thus, the ALJ

ultimately restricted Mr. Veltman from

      work at more than a low stress level, which means:

      essentially no working with the general public, minimal supervision
      and minimal interaction with supervisors and co-workers, minimal
      work setting changes;

      work at more than a low concentration level, which precludes such
      tasks as mental computation, sustained spontaneous speaking or
      sustained reading and writing, but still having average alertness and
      attentiveness; and,

      work at more than a low memory level, which means the ability to
      understand, remember and carry out simple instructions, the option to
      use memory aids, and with only minimal changes in the work
      instructions from week to week.

Id. at 32 (quote reformatted).

      In sum, although the analysis required by the treating physician rule was

not completed, its essential purpose, to require the ALJ to give careful

consideration to the opinions of a claimant’s treating physician, appears to have

been served. While a remand was necessary to permit the ALJ to conduct the

proper analysis of Dr. Hallett’s opinions, and to make appropriate findings, we

cannot say on this record that the district court abused its discretion in finding




                                          -7-
that the agency’s position, taken as a whole, had a reasonable basis in law and

fact. The judgment of the district court is therefore AFFIRMED.


                                                    Entered for the Court



                                                    Jerome A. Holmes
                                                    Circuit Judge




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