                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    April 11, 2012
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    LAURA M. THOMAS,

                Plaintiff-Appellant,

    v.                                                    No. 11-5088
                                                (D.C. No. 4:09-CV-00380-TLW)
    MICHAEL J. ASTRUE, Commissioner                       (N.D. Okla.)
    of Social Security Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TYMKOVICH and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.


         This appeal requires us to consider a magistrate judge’s discretion to deny

attorney’s fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. 1

After a magistrate judge remanded Laura M. Thomas’s disability claim to the

Commissioner of Social Security for further analysis, Ms. Thomas applied for

*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
1
      The parties consented to the jurisdiction of the magistrate judge. See
28 U.S.C. § 636(c).
attorney’s fees under the EAJA. The magistrate judge denied her application for

fees, Ms. Thomas appealed, and we now affirm.

      Ms. Thomas originally applied for disability insurance benefits, claiming

she was disabled on October 28, 2004, by deep vein thrombosis and obesity. Her

case proceeded to a hearing before an administrative law judge (ALJ), at which a

medical expert testified that Ms. Thomas became disabled in May 2007. Without

discussing this testimony, the ALJ concluded that Ms. Thomas did indeed become

disabled on May 1, 2007, but her insured status had already expired on

December 31, 2006. Consequently, the ALJ denied benefits, prompting

Ms. Thomas to seek judicial review in the district court.

      Ms. Thomas argued for a remand on the ground (among others) that the

ALJ improperly evaluated the medical expert’s opinion. She acknowledged that

the expert’s opinion concerning her date of onset was predicated on evidence of

neurological damage in her lower extremities discovered in 2007. But she argued

that there was other evidence documenting neurological changes as early as

February 2005, yet the ALJ did not explain why he credited the expert’s opinion

over this other evidence. The magistrate judge agreed that the ALJ failed to

properly evaluate the medical expert’s opinion, see 20 C.F.R. § 404.1527(f)(2)(ii)

(requiring ALJ to evaluate opinion evidence under relevant factors and explain

weight accorded to opinion), and he therefore remanded the case to the agency to

allow the ALJ to explain the weight accorded to the expert’s opinion.

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      Having succeeded in obtaining a remand, Ms. Thomas returned to the

magistrate judge and requested $5,995.10 in attorney’s fees pursuant to § 2412(d).

In her application, she argued that the remand order was a favorable final

judgment and the Commissioner’s position was not substantially justified. The

Commissioner, for his part, opposed a fee award, asserting that the issues before

the magistrate judge “involve[d] a genuine dispute, reasonable people could differ

as to the appropriateness of the matter, and the ALJ’s decision was justified ‘for

the most part.’” Aplt. App., Vol. 1 at 75 (quoting Pierce v. Underwood, 487 U.S.

552, 566 n.2 (1988)). The Commissioner explained that the ALJ’s decision was

affirmed on all grounds except the medical expert’s opinion, which only required

further discussion of the weight assigned; otherwise, the ALJ’s finding of May 1,

2007, as the date of onset was consistent with the expert’s opinion. Hence, the

Commissioner maintained that his position was substantially justified and fees

should therefore be denied. The magistrate judge agreed with the Commissioner

and held that “[t]he government’s position . . . was not only substantially

justified, any reasonable person would have viewed it as substantively correct, but

technically defective.” Aplt. App., Vol. 1 at 85.

      We review the denial of an EAJA claim for abuse of discretion. Pierce,

487 U.S. at 558-59. The EAJA entitles a prevailing party to recover reasonable

attorney fees from the government “‘unless the court finds that the position of the

United States was substantially justified or that special circumstances make an

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award unjust.’” Al-Maleki v. Holder, 558 F.3d 1200, 1204 (10th Cir. 2009)

(quoting 28 U.S.C. § 2412(d)(1)(A)). “The test for substantial justification in this

circuit is one of reasonableness in law and fact.” Hackett v. Barnhart, 475 F.3d

1166, 1172 (10th Cir. 2007) (quotation omitted). In other words, “the

government’s position must be justified to a degree that could satisfy a reasonable

person,” but it need not necessarily be correct. Id. (quotation omitted).

      We agree that the government’s position was substantially justified. The

dispositive issue for the magistrate judge was whether the ALJ properly evaluated

the medical expert’s opinion. The ALJ cited substantial evidence demonstrating

that Ms. Thomas’s condition had deteriorated until she was disabled in May 2007,

but he did not discuss how (if at all) he weighed the medical expert’s opinion.

Although the Commissioner defended the ALJ’s decision, he did so on

substantially justifiable grounds, noting that the ALJ was not obligated to find

that Ms. Thomas was disabled after her insured status expired. He also

emphasized that the ALJ’s finding of disability in May 2007 was consistent with

the expert’s opinion, which was itself substantial evidence supporting the ALJ’s

decision.

      These arguments were rejected by the magistrate judge, but that does not

render the government’s position unreasonable. Rather, as the magistrate judge

observed, “the record clearly supported the ALJ’s decision so long as the ALJ

simply stated the weight he assigned to the medical expert’s opinion.” Aplt.


                                         -4-
App., Vol. 1 at 85. Indeed, the magistrate judge “fully anticipated that on remand

the ALJ would promptly revise his decision to identify the weight he gave the

medical expert without altering his ultimate conclusion that [Ms. Thomas] was

not disabled prior to the onset date found by the ALJ.” Id. These circumstances

demonstrate that the magistrate judge acted within his discretion in denying

attorney’s fees.

      Accordingly, the judgment of the district court is AFFIRMED.


                                                   Entered for the Court



                                                   Timothy M. Tymkovich
                                                   Circuit Judge




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