Patricia Williams v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY On Appeal from the United States…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1471
PATRICIA WILLIAMS,
Appellant
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-07-cv-01832)
District Judge: Hon. Eduardo C. Robreno
Argued November 5, 2009
BEFORE: SCIRICA, Chief Judge, JORDAN and COWEN, Circuit Judges
(Filed: December 4, 2009)
Robert Savoy, Esq. (Argued)
3 Neshaminy Interplex
Suite 301
Trevose, PA 19053
Counsel for Appellant

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Nicholas R. Cerulli, Esq.
Eda Giusti, Esq.
Joyce M.J. Gordon, Esq.
Dina Griffin, Esq.
Allyson Jozwik, Esq. (Argued)
Eric P. Kressman, Esq.
Social Security Administration
SSA/OGC/Region III
P.O. Box 41777
Philadelphia, PA 19101
Counsel for Appellee
OPINION
COWEN, Circuit Judge
Patricia Williams appeals an order denying her request for attorneys’ fees under
the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. We will affirm.
I. Background
Patricia Williams applied for disability insurance benefits, which the Social
Security Administration denied. She appealed and attended a hearing before an
Administrative Law Judge (“ALJ”). She testified as did an independent Vocation Expert
(“VE”). At the conclusion of the hearing, the ALJ denied her claim, which the Appeals
Council affirmed. Williams sought review in the District Court asserting that several of
the ALJ’s findings were not supported by substantial evidence. The District Court
rejected each of Williams’ arguments with the exception of one, and remanded for further
findings on that issue. The District Court agreed with Williams that the ALJ’s findings

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with respect to Williams’ ability to perform her past relevant work were not supported by
the substantial evidence.
To properly evaluate Williams’ EAJA fee application, some background on this
issue is necessary. In denying benefits, the ALJ determined that Williams was able to
perform light duty and that her past relevant work consisted of positions requiring light
duty. The ALJ supported this conclusion with testimony purportedly from the VE.
According to the ALJ, the VE’s testimony indicated that “based upon the claimant’s
residual functional capacity, the claimant could return to her past relevant work as an
automobile service advisor, retail store manager, and/or office clerk . . . .” (App. 21.)
The VE’s testimony varies remarkably from the ALJ’s recollection. The VE indicated
that the statutory definition of the positions that Williams previously held constituted light
work; however, the VE noted that if Williams’ testimony regarding her actual duties was
fully credited, the positions required medium-duty work. Further, the VE indicated that if
Williams’ testimony regarding pain and limitations was fully credited, Williams could not
perform any work.
Williams asserted in the District Court that the ALJ misstated the VE’s testimony
and failed to address the discrepancy between the exertional levels required of her past
relevant work, as set forth in the statutory definitions of those positions, and as the VE
testified. The government conceded that the ALJ misstated the VE’s testimony, but
asserted that remand was unnecessary, as the ALJ’s finding could be affirmed under an

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alternative theory. According to the government, the VE’s testimony was not essential to
the ALJ’s conclusion as the ALJ could support her finding entirely by other evidence in
the record, which would yield the same result—that Williams was able to perform her
past relevant work.
The District Court concluded that a “remand is warranted . . . for the ALJ to
explain her conclusion that the plaintiff is capable of performing past relevant work” as
the ALJ offered no explanation as to the discrepancy between her recollection and the
VE’s actual testimony. (App. 102.) Additionally, the court noted that the VE’s definition
of plaintiff’s past relevant work required an exertional level that was higher than that
contained in the statutory definitions. The statutory description states that light duty is
required of automotive service advisors and retail managers; however, the vocation expert
testified that an automotive service advisor position required a level of duty “above light”
and a retail manager position required “at least medium” duty. (Id.) The court concluded
that “the ALJ’s failure to identify this conflict or recognize that she had rejected the VE’s
description of the exertional levels of these occupations warrants remand.” (Id.)
Williams then moved for attorneys’ fees pursuant to the EAJA. The sole issue
before the court was whether the government’s position was “substantially justified” as
Williams met the other requirements for an award of fees. The District Court found that
the under the “totality of the circumstances” the government’s position was substantially
justified. The District Court denied Williams’ request for attorneys’ fees and this appeal

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followed. The sole issue on appeal is whether the District Court erred in finding that the
government’s position was substantially justified.
II. Standard of Review
“The district court’s determination of substantial justification in a suit under the
EAJA is reviewed for abuse of discretion.” See Morgan v. Perry, 142 F.3d 670, 682 (3d
Cir. 1998) (citing Pierce v. Underwood, 487 U.S. 552, 560 (1988)). “An abuse of
discretion arises when ‘the district court’s decision rests upon a clearly erroneous finding
of fact, an errant conclusion of law or an improper application of law to fact.’” Hanover
Potato Prods., Inc. v. Shalala, 989 F.2d 123, 127 (3d Cir. 1993) (quoting N.L.R.B. v.
Frazier, 966 F.2d 812, 815 (3d Cir. 1992)).
III. Discussion
Under the EAJA, a prevailing party in a litigation against the government shall be
awarded “fees and other expenses . . . incurred by that party . . . unless the court finds
that the position of the United States was substantially justified or that special
circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). A position is
substantially justified if it is “justified in substance or in the main—that is, justified to a
degree that could satisfy a reasonable person.” Pierce, 487 U.S. at 565. Stated
differently, a government position is substantially justified “if it has a reasonable basis in
both law and fact.” Hanover Potato, 989 F.2d at 128. To defeat a prevailing party’s
application for fees, the government must establish that there is substantial justification

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for its position by demonstrating “(1) a reasonable basis in truth for the facts alleged; (2)
a reasonable basis in law for the theory it propounded; and (3) a reasonable connection
between the facts alleged and the legal theory advanced.” Morgan, 142 F.3d at 684
(citing Hanover Potato, 989 F.2d at 128).
It is well-settled in this circuit that “a court cannot assume that the government’s
position was not substantially justified simply because the government lost on the
merits.” Morgan, 142 F.3d at 685. “The EAJA is not a ‘loser pays’ statute”; rather,
courts should limit their inquiries to whether the government’s position was reasonable
under the facts and the law. Id. (“The inquiry into reasonableness for EAJA purposes
may not be collapsed into the antecedent evaluation of the merits, for EAJA sets forth a
distinct legal standard.”).
The government’s position consists of both its prelitigation agency position and
its litigation position. As other circuits have recognized, when determining whether the
government’s position is substantially justified, “we must . . . arrive at one conclusion
that simultaneously encompasses and accommodates the entire civil action.” Jackson v.
Chater, 94 F.3d 274, 278 (7th Cir. 1996) (affirming the denial of fees as the
government’s position on the whole was substantially justified); see also Roanoke River
Basin Assoc. v. Hudson, 991 F.2d 132, 139 (4th Cir. 1993) (“[W]e conclude that when
determining whether the government’s position in a case is substantially justified, we
look beyond the issue on which the petitioner prevailed to determine, from the totality of

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the circumstances, whether the government acted reasonably in causing the litigation or
in taking a stance during the litigation.”). Moreover, “a party’s success on a single
claim will rarely be dispositive of whether the government’s overall position was
substantially justified.” Stewart v. Astrue, 561 F.3d 679, 683 (7th Cir. 2009).
The District Court properly concluded that the government’s position was
substantially justified. The District Court found just one error with the ALJ’s decision
and that particular error is inconsequential, as the ALJ had the ability to reach the same
conclusion on remand based on other evidence in the record. Under these
circumstances, we conclude that the government’s position was substantially justified.
IV. Conclusion
We affirm the District Court’s order denying attorneys’ fees under the EAJA.

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