United States District Court, D. Utah, Central Division
ROBERT M. LEMMON, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM DECISION AND ORDER
M. WARNER Chief United States Magistrate Judge.
parties consented to having Chief United States Magistrate
Judge Paul M. Warner conduct all proceedings in the case,
including entry of final judgment, with appeal to the United
States Court of Appeals for the Tenth Circuit. See 28
U.S.C. § 636(c); Fed.R.Civ.P. 73. Before the court is
Robert M. Lemmon's (“Plaintiff”) motion for
attorney fees under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d). The court has
carefully reviewed the written memoranda submitted by the
parties. Pursuant to civil rule 7-1(f) of the Rules of
Practice for the United States District Court for the
District of Utah, the court has concluded that oral argument
is not necessary and will determine the motion(s) on the
basis of the written memoranda. See DUCivR 7-1(f).
is seeking attorney's fees pursuant to the EAJA. 28
U.S.C. § 2412(d)(1)(A). Under the EAJA, “a court
shall award to a prevailing party . . . fees and other
expenses . . . incurred by that party in any civil action . .
. unless the court finds that the position of the United
States was substantially justified or that special
circumstances make an award unjust.” Id. The
United States Supreme Court has defined “substantially
justified” to mean that the position taken by the
government was “justified to a degree that could
satisfy a reasonable person.” Pierce v.
Underwood, 487 U.S. 552, 565 (1988). “The test for
substantial justification in this circuit is one of
reasonableness in law and fact.” Gilbert v.
Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995). The
government's “position can be justified even though
it is not correct, and . . . it can be substantially
(i.e. for the most part) justified if a reasonable
person could think it correct, that is, if it has a
reasonable basis in law and fact.” Pierce, 487
U.S. at 566 n.2.
social security context, the substantial justification
standard under the EAJA is not the same as the substantial
evidence standard under the Social Security Act, 42 U.S.C.
§ 405(g). This “would result in an automatic award
of attorney's fees in all social security cases in which
the government was unsuccessful on the merits.”
Hadden v. Bowen, 851 F.2d 1266, 1269 (10th Cir.
1988). “The government's success or failure on the
merits at each level may be evidence of whether its position
was substantially justified, but that success or failure
alone is not determinative of the issue.” Id.
at 1267. For the purposes of the EAJA, “a lack of
substantial evidence on the merits does not necessarily mean
that the government's position was not substantially
justified.” Id. at 1269.
instant case, this court remanded the case because the ALJ
erroneously relied upon two positions that conflicted with
Plaintiff's Residual Functional Capacity
(“RFC”) in determining that there were a
significant number of jobs in the national economy that
Plaintiff could perform. Thus, for the only position that was
consistent with Plaintiff's RFC (final assembler), the
ALJ never had the occasion to determine whether 10, 000
positions (as determined by the vocational expert) and/or 13,
000 positions (as determined by the ALJ) constituted a
significant number of jobs in the national economy. While the
government conceded that it was error for the ALJ to include
the two positions that conflicted with Plaintiff's RFC,
it argued that the error was harmless because the final
assembler position existed in significant numbers in the
Tenth Circuit has refused to draw a “bright line
establishing the number of jobs necessary to constitute a
significant number” in the national economy.
Trimiar v. Sullivan, 966 F.2d 1326, 1330 (10th Cir.
1992). While the Tenth Circuit has previously held that the
harmless error doctrine may be proper in certain
circumstances, it necessitates “the right exceptional
circumstance, i.e., where based on material the ALJ did at
least consider (just not properly), [the court] could
confidently say that no reasonable administrative factfinder,
following the correct analysis, could have resolved the
factual matter in any other way.” Allen v.
Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004).
unpublished case that is very similar to the instant case,
the Tenth Circuit upheld the district court's denial of
the plaintiff's application for attorney fees where the
district court found (and the government conceded) that it
was error for the ALJ to include one of the positions as it
was inconsistent with the plaintiff's RFC. Evans v.
Colvin, 640 F. App'x 731, 736 (10th Cir. 2016)
(unpublished). The district court was not persuaded by the
government's harmless error argument and remanded the
case to the ALJ to determine whether the other two jobs
existed in significant numbers in the national economy.
Id. at 734. The Tenth Circuit concluded that, while
ultimately unsuccessful, it was not unreasonable for the
government to argue that 18, 831 jobs in the national economy
was a significant number and that the court should apply the
harmless error doctrine. Id. at 736-37. As noted by
the Tenth Circuit, the district court reasoned that the
conflicting authority regarding this issue "could
reasonably be viewed as supporting a decision either way,
" and stated "that it would not be surprised if the
ALJ found that the remaining national jobs existed in
significant numbers" because "the issue had been a
very close call." Id. at 735. The Tenth Circuit
concluded that because its precedent suggested that the
number of nationwide jobs considered to be significant in the
harmless error context could be anywhere between 100 and 152,
000, the government was substantially justified in arguing
harmless error for 18, 831 remaining positions. Id.
at 736-37. Thus, the Tenth Circuit affirmed the district
court's denial of the plaintiffs application for attorney
fees under the EAJA. Id.
this court concludes that it was not unreasonable for the
government to argue that the ALJ's error was harmless.
Like the district court in Evans, this court would
not be surprised if the ALJ found that the number of
positions remaining that Plaintiff could perform exists in
significant numbers in the national economy. However, based
on this court's understanding of the applicable
precedent, the ALJ should be the first judge to consider this
issue. Accordingly, the government was substantially
justified in arguing that 10, 000 (or 13, 000) final
assembler positions in the national economy constituted a
on the foregoing, Plaintiff's motion for attorney's
fees under the EAJA is DENIED
IS SO ORDERED.
 Dkt. no. 10.