                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      September 7, 2006
                             FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                         Clerk of Court

    JO H N A . FLEM IN G ,

                 Plaintiff-Appellant,

    v.                                                    No. 06-1048
                                                   (D.C. No. 04-cv-2048-LTB)
    JO A NN E B. BA RN HA RT,                              (D . Colo.)
    Commissioner of the Social Security
    Administration,

                 Defendant-Appellee.



                              OR D ER AND JUDGM ENT *


Before BARRETT, BROR BY, and EBEL, Circuit Judges.




         Plaintiff John Fleming appeals from the district court’s denial of his motion

for attorney fees under the Equal A ccess to Justice Act (EAJA), 28 U.S.C. § 2412.

W e have jurisdiction under 28 U.S.C. § 1291, and we AFFIRM .




*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      After Fleming’s application for disability insurance benefits was denied, he

requested a hearing before an administrative law judge (ALJ). Fleming was not

represented by counsel at the hearing. The A LJ found that Fleming had severe

bilateral degenerative joint disease (DJD) in his knees, but the ALJ denied relief

on the basis that Fleming retained the residual functional capacity (RFC) to

perform his past relevant work and was therefore not disabled. The Appeals

Council denied Fleming’s request for review. Fleming appealed, and the district

court reversed and remanded for further proceedings.

      The district court found three legal errors in the ALJ’s decision: (1) failure

to make the necessary findings at each of the RFC assessment phases–specifically

the ALJ’s failure to address plaintiff’s functional capacity to stand and walk in an

eight-hour workday; (2) the resulting failure to adequately address Fleming’s

standing/walking limitations in the operative hypothetical presented to the

vocational expert; and (3) the ALJ’s failure in his heightened duty to adequately

develop the record, in light of the fact that plaintiff was not represented by

counsel. Based upon these errors, the district court found that the A LJ’s

assessment of Fleming’s RFC in the fourth step of the five-step analysis was not

grounded in substantial evidence in the record. See 20 C.F.R. § 404.1520(a)(4);

Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (“The Social

Security Administration employs an oft-repeated five-part sequential evaluation

process for determining whether a claimant is disabled.”).

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      Fleming filed a motion for fees under the EA JA. The district court denied

the motion, concluding that, when viewed under a totality of the circumstances,

the C ommissioner’s position was reasonable in fact and law, and therefore

substantially justified.

      Under the EAJA, a fee award is required if (1) Fleming 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 EAJA explains that the “position of the United States” is

“in addition to the position taken by the United States in the civil action, the

action or failure to act by the agency upon which the civil action is based.”

Id. § 2412(d)(2)(D). The only dispute in this appeal is whether the government’s

position was substantially justified.

      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) (quotation

omitted). The Supreme Court 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. M oreover, the

government’s “position can be justified even though it is not correct . . . and it




                                          -3-
can be substantially (i.e., for the most part) justified if a reasonable person could

think it correct . . . .” Id. at 566 n.2.

       In opposing Fleming’s motion for fees, the Commissioner contended that

the government’s position prior to the district court’s reversal was substantially

justified. In her brief on the merits, the Commissioner had conceded that the

ALJ’s assessment of RFC was defective. However, she argued that the A LJ’s

failure to make findings on Fleming’s standing/walking capacity was harmless

error in light of the other evidence in the record that she contended supported the

ALJ’s decision. Specifically, the Commissioner pointed to the fact that the ALJ

placed “great weight” on the opinion of a non-treating physician, who concluded

that Flem ing could “sit, stand and walk for an eight-hour workday with

reasonable breaks.” Aplt. App., Vol. 1 at 72 (quotations omitted). As to the

adequacy of the ALJ’s development of the record, the Commissioner argued that

the hearing transcript showed that Fleming had received a full and fair hearing.

       In reviewing Fleming’s motion for fees, the district court assessed the

government’s position, as viewed under the totality of the circumstances. See

Comm’r, INS v. Jean, 496 U.S. 154, 161-62 (1990) (“[T]he EA JA–like other

fee-shifting statutes–favors treating a case as an inclusive whole, rather than as

atomized line-items.”). It noted that the ALJ had reviewed all the evidence in the

record, which “although admittedly conflicting, could have been sufficient to

support the A LJ’s conclusions if [the] functions of standing and walking were

                                            -4-
properly addressed.” Aplt. App., Vol. 1 at 4. The district court characterized the

Commissioner’s position below, including her proper concession of error and her

argument that it was harmless, as not unreasonable in fact or in law under the

circumstances of this case, and therefore substantially justified.

      W e review the district court’s decision that the government’s position was

substantially justified for abuse of discretion. Gilbert v. Shalala, 45 F.3d 1391,

1394 (10th Cir. 1995). “A n 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,” M oothart v. Bell,

21 F.3d 1499, 1504-05 (10th Cir. 1994) (quotations omitted). This court “must

carefully scrutinize the district court’s exercise of its discretion, but we may not

. . . substitute our own judgment for that of the trial court.” Kiowa Indian Tribe,

150 F.3d at 1165 (quotation omitted) (alteration in original).

      Fleming argues that the district court improperly applied the legal standard

for EAJA fees. He contends that the district court’s reasoning in finding

substantial justification based upon the government’s harmless error argument

amounts to a post hoc justification of the ALJ’s decision. W e disagree. W ith this

argument, plaintiff conflates the merits analysis of whether the government’s

legal position was wrong–which is not in dispute–with the determination whether

                                          -5-
its position was substantially justified. Fleming’s approach to assessing

substantial justification applies twenty-twenty hindsight, rather than examining

the government’s position as it w as litigated. See Pierce, 487 U.S. at 566 n.2.

(noting that government’s “position can be justified even though it is not

correct”); Gonzales v. Free Speech Coalition, 408 F.3d 613, 620 (9th Cir. 2005)

(observing importance of avoiding hindsight in assessing government’s position).

      The district court did not make legally inconsistent findings regarding

substantial evidence, as the plaintiff contends. On the merits, the district court

considered whether there was substantial evidence to support the ALJ’s decision

and found that there was not. In subsequently deciding Fleming’s fee motion, the

court assessed whether it was reasonable in law and in fact for the Commissioner

to argue there was substantial evidence. See Fulton v. Heckler, 784 F.2d 348, 349

(10th Cir. 1986). In reversing and remanding on the merits, the district court

declined the Commissioner’s invitation, under a harmless error analysis, to supply

the missing RFC findings regarding standing and walking. However, in denying

Fleming’s fee motion, the district court held it was not unreasonable for the

Commissioner to concede the ALJ’s error, yet argue it was harmless, even though

that position did not ultimately carry the day. The district court found the

government’s position to be substantially justified in this case, not because the

error was harmless, but because it was not unreasonable under the circumstances

of this case to argue that it was harmless.

                                          -6-
      Based on our review of the record and given our deferential standard of

review, we cannot conclude that the district court abused its discretion. It

appropriately considered whether the government’s position was reasonable in

law and fact, under circumstances as to which reasonable minds could differ. See

Pierce, 487 U.S. at 565. W e do not find that the district court was arbitrary,

capricious or exercised manifestly unreasonable judgment in reaching its

conclusion that the government’s position was substantially justified. See

M oothart, 21 F.3d at 1504-05. Because w e do not have a definite and firm

conviction that the lower court made a clear error of judgment or exceeded the

bounds of permissible choice, the trial court’s decision will not be disturbed. See

id. at 1504.

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     W ade Brorby
                                                     Circuit Judge




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