Hays v. Berryhill, 694 F. App'x 634

Hays applied for Social Security disability and SSI; an ALJ denied benefits based on an RFC allowing light work with standing/walking for a combined six hours/day.
Examining physician Dr. Amin completed a narrative and a checklist indicating Hays could stand four hours and walk four hours (each "at one time" on the checklist), creating an apparent inconsistency with the ALJ’s RFC and the VE hypothetical.
On appeal this court remanded for clarification of the ALJ’s treatment of Dr. Amin’s standing/walking restrictions but rejected Hays’s other challenges. Hays v. Colvin, 630 F. App’x 749.
Hays moved in district court for EAJA attorney fees, arguing the Commissioner’s position was not substantially justified; the district court denied fees, finding the Commissioner’s position was reasonably justified.
The district court reasoned a reasonable person could view Dr. Amin’s checklist as consistent with a combined six-hour standing/walking limitation, noted that the merits panel affirmed most issues and remanded for clarification rather than awarding benefits, and concluded the government’s position was substantially justified.
Hays appealed the denial of EAJA fees; the Tenth Circuit affirmed, holding the district court did not abuse its discretion in finding substantial justification.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Commissioner’s position was substantially justified, making EAJA fees improper	Hays: Commissioner relied on impermissible post-hoc rationalizations and the ALJ’s RFC conflicted with Dr. Amin’s standing/walking findings, so the government was not substantially justified	Commissioner: Dr. Amin’s findings could reasonably be read as consistent with the ALJ’s RFC (combined six hours); remand was for clarification and government’s litigating position was reasonable	Court: Affirmed denial of EAJA fees — government position was substantially justified; district court did not abuse its discretion

Hackett v. Barnhart, 475 F.3d 1166 (10th Cir. 2007) (EAJA elements and substantial-justification test explained)
Pierce v. Underwood, 487 U.S. 552 (U.S. 1988) (definition of "substantially justified")
Madron v. Astrue, 646 F.3d 1255 (10th Cir. 2011) (losing litigating position can still be substantially justified)
Haga v. Astrue, 482 F.3d 1205 (10th Cir. 2007) (warning against post-hoc rationalizations for ALJ decisions)
Grogan v. Barnhart, 399 F.3d 1257 (10th Cir. 2005) (rejecting post-hoc rationalizations when ALJ’s decision lacks apparent support)
Keyes-Zachary v. Astrue, 695 F.3d 1156 (10th Cir. 2012) (harmless-error analysis when RFC is generally consistent with physician’s findings)
Mays v. Colvin, 739 F.3d 569 (10th Cir. 2014) (ALJ’s failure to weigh opinion can be harmless if consistent with RFC)
DeLong v. Comm’r of Soc. Sec. Admin., 748 F.3d 723 (6th Cir. 2014) (remand for clarification can support denial of EAJA fees when the record does not strongly establish entitlement to benefits)