                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                      April 13, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court
                             FOR THE TENTH CIRCUIT


    JERRY L. HARROLD,

                Plaintiff-Appellant,                        No. 09-5116
                                                  (D.C. No. 4:06-CV-00589-FHM)
    v.                                                      (N.D. Okla.)

    MICHAEL J. ASTRUE,
    Commissioner, Social Security
    Administration,

                Defendant-Appellee


                              ORDER AND JUDGMENT *


Before KELLY, BALDOCK, and HOLMES, Circuit Judges.



         Plaintiff-appellant Jerry L. Harrold appeals the district court’s denial of his

motion for attorney fees under 28 U.S.C. § 2412(d) (the Equal Access to Justice

Act or EAJA). Because the district court did not abuse its discretion in refusing

to award fees, 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      In the underlying case, Mr. Harrold appealed the district court’s affirmance

of the Commissioner’s denial of his application for social security disability

insurance benefits. This court reversed. Harrold v. Astrue, 299 F. App’x 783,

789 (10th Cir. 2008). In so doing, we instructed the district court to remand to

the Commissioner for a step-three determination of whether a clinical

psychologist’s “mild-retardation opinion, the supporting IQ scores, and

Mr. Harrold’s additional severe impairments at step two satisfy the capsule

definition and the severity prong of Listing 12.05C.” Id. at 788.

      Because Mr. Harrold obtained a district-court remand to the Commissioner

under sentence four of 42 U.S.C. § 405(g), he is a prevailing party for EAJA

purposes. Hackett v. Barnhart, 475 F.3d 1166, 1168 (10th Cir. 2007)

(Hackett II). He is therefore “entitled to recover reasonable attorney fees from

the United States unless the court finds that the position of the United States was

substantially justified[,]” id. (internal quotation marks omitted), or there are

“special circumstances that make an award of fees unjust[,]” id. at 1172. Because

the Commissioner does not make the latter argument, “[t]he only dispute in this

appeal is whether the Commissioner’s position was substantially justified.” Id.

      In denying the fee motion, the magistrate judge concluded that the

Commissioner’s position both at the agency level and at the litigation level was

substantially justified. We agree.




                                          -2-
      The Commissioner has the burden of demonstrating that his position was

substantially justified, a test that, in this circuit, means his position was

reasonable in law and in fact and thus can be “justified to a degree that could

satisfy a reasonable person.” Id. (internal quotation marks omitted). Even though

the Commissioner’s position turns out to be incorrect, it can still be justified. Id.

Both the Commissioner’s prelitigation and litigation positions must have had

reasonable bases in fact and law to be considered substantially justified.

Gutierrez v. Sullivan, 953 F.2d 579, 585 (10th Cir. 1992).

      “We review the district court’s determination of whether the government’s

position was substantially justified for abuse of discretion.” 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.” Hackett II, 475 F.3d at 1172 (internal quotation

marks omitted).

      After the hearing before the ALJ, Mr. Harrold’s attorney arranged for him

to be tested by Dr. William Bryant, a clinical psychologist. Dr. Bryant’s report

was submitted to the Appeals Council which made it part of the record on appeal.

In the report, Dr. Bryant stated that Mr. Harrold has a Full Scale IQ of 61. Based

on that score and other tests he administered to Mr. Harrold, Dr. Bryant

concluded that Mr. Harrold has mild mental retardation and that he essentially

cannot read.

                                           -3-
      The Appeals Council did not find Dr. Bryant’s report sufficient to change

the administrative law judge’s denial-of-benefits decision. The Council stated:

      The [doctor who performed the consultative physical examination]
      noted that you reported a learning disability and is silent for any
      reports of mental retardation. None of your treatment sources noted
      observations consistent with a diagnosis of mental retardation. Your
      work history is inconsistent with developmental deficiencies. Your
      report to Dr. Bryant that implied that your past work was of a routine
      nature learned in a supportive environment is not consistent with
      your description of your past work in the documentary record. You
      reported using power and hand tools, repairing a variety of
      appliances including heaters, air conditioners, stoves etc., and doing
      remodeling including dry wall work.

Harrold, 299 F. App’x at 786 (record cites omitted).

      On appeal, this court held that the Appeals Council’s rejection of

Dr. Bryant’s report was not supported by substantial evidence. Id. at 787. We

paid particular attention to the Appeals Council’s conclusion that “Mr. Harrold’s

‘work history is inconsistent with developmental deficiencies.’” Id. at 788. We

began by noting that the Appeals Council relied on much the same type of

evidence we relied on in Lax v. Astrue, 489 F.3d 1080 (10th Cir. 2007), where

“we concluded that the record in that case contained substantial evidence to

support a finding that the claimant’s IQ scores were not an accurate reflection of

his intellectual abilities.” Harrold, 299 F. App’x at 788. After distinguishing

Lax, we concluded that “the Appeals Council erred in relying on Mr. Harrold’s

prior work history as a basis for rejecting Dr. Bryant’s mild-retardation opinion

and the IQ scores.” Id.

                                         -4-
      In explaining why it thought the Commissioner’s position had been

substantially justified, the district court pointed to the conflict in the record

between Mr. Harrold’s own description of his work history as a maintenance

worker in an apartment house (which involved preparing work orders, supervising

other employees, remodeling units, and using tools) with the report he gave the

clinical psychologist that his work had been routine and learned in a supportive

environment. The Commissioner had correctly cited a regulation in his brief in

the merits appeal cautioning that “the results of intelligence tests are only part of

the overall assessment” and that it is important to also consider whether the IQ

scores are “consistent with the developmental history and the degree of functional

limitation.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(D)(6)(a). Reflecting our

attention to the regulation, our order and judgment on the merits devoted

considerable attention to the seeming conflict between Mr. Harrold’s prior work

history and his diagnosis of mild mental retardation. See Harrold, 299 F. App’x

at 788.

      The Commissioner was substantially justified in arguing that the Appeals

Council had correctly denied benefits based on its consideration of Dr. Bryant’s

report, not in isolation, but in context with the rest of the record evidence,

particularly Mr. Harrold’s prior work history. The fact that this court ultimately

held that the reasons relied upon by the Commissioner to deny benefits were not

supported by substantial evidence does not necessarily mean that the

                                           -5-
Commissioner’s position, either at the agency level or in later litigation, was not

substantially justified. See Hadden v. Bowen, 851 F.2d 1266, 1269 (10th Cir.

1988). The district court did not abuse its discretion in so finding. 1

      The judgment of the district court is AFFIRMED.


                                                      Entered for the Court



                                                      Bobby R. Baldock
                                                      Circuit Judge




1
       The fact that the district court mentioned a fact from the record that was
not relied on by the Appeals Council in its merits decision does not mean that the
court’s denial of an EAJA award was tainted by inappropriate post hoc
rationalization. The denial of a fee award was within the bounds of discretion
because the Commissioner’s position was substantially justified.

                                          -6-
