Maurice E. Meyer, Iii v. CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1700
MAURICE E. MEYER, III,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social
Security Administration,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:08-cv-03828-JFA)
Argued: May 14, 2014 Decided: June 10, 2014
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge King and Judge Duncan joined.
ARGUED: Robertson H. Wendt, Jr., LAW OFFICES OF ROBERTSON WENDT,
North Charleston, South Carolina, for Appellant. Jennifer
Randall, SOCIAL SECURITY ADMINISTRATION, Denver, Colorado, for
Appellee. ON BRIEF: William N. Nettles, United States Attorney,
Marshall Prince, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

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DIANA GRIBBON MOTZ, Circuit Judge:
Social Security claimant Maurice Meyer appeals the district
court’s denial of his motion for attorney’s fees under the Equal
Access to Justice Act (“the Act”). The Act provides that a
party who prevails in litigation against the United States is
entitled to an award of attorney’s fees unless “the position of
the United States was substantially justified” or “special
circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A).
The district court determined that Meyer prevailed in his
lawsuit against the Commissioner of Social Security, but that
attorney’s fees were unwarranted because the Commissioner had
pursued a substantially justified position. For the reasons
that follow, we affirm.
I.
Upon suffering a spinal injury in 2004, Meyer applied for
Social Security disability benefits. An administrative law
judge (“ALJ”) denied the claim, reasoning that although Meyer
suffered from a degenerative back condition, he retained the
capacity to work.
In support of his conclusion, the ALJ noted that between
August 2005 and June 2006, Meyer reported improvements in his
overall condition, including greater mobility and reduced
reliance on pain medication. In addition, numerous physicians

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who treated Meyer indicated that he was in “no apparent
distress,” that he appeared to be “generally healthy,” and that
he could “ambulate independently.” To be sure, Meyer offered a
report by Dr. Barry Weissglass, a physician who, at Meyer’s
request, performed an “independent occupational evaluation”
concluding that Meyer was unable to work outside the home. The
ALJ did not find the report persuasive, however, noting that Dr.
Weissglass was not Meyer’s treating physician and that his
findings conflicted with the weight of the evidence.1
Meyer sought review from the Social Security Appeals
Council. Along with his request for review, Meyer submitted
additional evidence, including a letter from Dr. Byron Bailey,
the physician who performed Meyer’s surgery. Although Dr.
Bailey had not treated Meyer in the last two years, the doctor
claimed that Meyer suffered from “chronic, debilitating . . .
pain[,] which was anticipated due to the magnitude of his
injury.” Dr. Bailey further opined that Meyer would “continue
to require frequent follow-up and medical management” and would
likely require additional surgeries. At the close of his
letter, Dr. Bailey noted his agreement “with the majority of
[Dr. Weissglass’s] findings.”
1 For a more complete recitation of the facts, see Meyer v.
Astrue, 662 F.3d 700 (4th Cir. 2011).

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The Appeals Council denied Meyer’s request for review. In
evaluating the claim, the Council stated that it found Dr.
Bailey’s letter to present “new and material” evidence, and so
incorporated the letter into the record. See 20 C.F.R.
§ 404.970(b). Nevertheless, after considering all the evidence
-- including the letter -- the Council declined to review the
ALJ’s decision. In light of the Council’s pronouncement, the
ALJ’s decision became the “final decision” of the Commissioner
of Social Security.
Meyer then sought review in federal court. In his
complaint, Meyer asserted that the Appeals Council erred by
failing to make “specific findings of fact” explaining why Dr.
Bailey’s letter did not merit considerable weight and attention.
Meyer also argued that “substantial evidence” failed to support
the Commissioner’s decision. Specifically, he contended that
the ALJ’s rejection of Dr. Weissglass’s findings could not stand
in light of Dr. Bailey’s conclusions. Additionally, Meyer
claimed that the ALJ ignored the fact that his treatment
schedule would require him to miss so much work that he was
effectively unemployable.2
2 Meyer conceded at oral argument that he failed to raise
this argument with specificity before the ALJ. He nonetheless
claims that the ALJ erred by failing to address the argument sua
sponte.

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In response, with respect to the failure of the Appeals
Council to address Dr. Bailey’s letter, the Commissioner argued
that federal regulations did not require the Council to explain
its evaluation of Meyer’s application in detail. See 20 C.F.R.
§ 404.970(b). Accordingly, the Commissioner maintained that the
Council’s summary affirmance of the ALJ did not violate the law.
As to the merits of Meyer’s application, the Commissioner
argued that “substantial evidence” did support the
Commissioner’s decision. The Commissioner pointed out that
copious medical evidence indicated that Meyer had made
significant improvements since his surgery. Dr. Bailey’s letter
did not alter this analysis because the letter was not “new and
material” evidence subject to administrative review: Dr. Bailey
had ended his relationship with Meyer nearly two years before he
authored the letter, and his findings simply echoed those of Dr.
Weissglass. See Wilkins v. Sec’y, Dep’t of Health & Human
Servs., 953 F.2d 93, 95-96 (4th Cir. 1991) (explaining that
evidence is “new” if it is not duplicative, and “material” if
there is a reasonable probability that the evidence would change
the outcome). The Commissioner further argued that the failure
to address Meyer’s treatment schedule did not constitute error
because Meyer failed to present evidence that his doctor’s
appointments would prevent him from maintaining a flexible,
alternative work schedule.

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The district court agreed with the Commissioner. See Meyer
v. Astrue, No. 3:08-cv-3828-JFA-JRM, 2010 WL 1257626 (D.S.C.
Mar. 25, 2010) (unpublished). On appeal, the parties reiterated
their earlier arguments, with one important exception. The
Commissioner no longer justified the Commissioner’s decision on
the ground that Dr. Bailey’s letter was not new or material.
Instead, the Commissioner now conceded that the letter was new
and material evidence, but argued that it was not important
enough to undermine the Commissioner’s decision. As before, the
Commissioner noted that Dr. Bailey had not treated Meyer
recently and that his findings were duplicative of those of Dr.
Weissglass.
In a published opinion, we affirmed in part and reversed in
part. Meyer, 662 F.3d at 702. We agreed with the district
court and the Commissioner that the Appeals Council was under no
obligation to articulate its rationale for denying Meyer’s
request for review. Id. at 704–06. We noted that agency
regulations require the Council to explain its analysis only if
it “grant[s] [an applicant’s] request [for review],” and in
Meyer’s case, the Council denied the request. Id. at 705
(quoting 20 C.F.R. § 404.967).
With respect to the merits, however, we held that, based on
the record before us, we could not determine whether substantial
evidence supported the Commissioner’s decision. Id. at 707.

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Accordingly, we remanded the case to the district court with
instructions to remand to the ALJ so that he could consider and
determine the import of Dr. Bailey’s letter. Id. We indicated
that, while doing so, the ALJ should also consider evidence of
Meyer’s absenteeism. Id. at 707 n.3 (citing Newton v. Apfel,
209 F.3d 448, 459 (5th Cir. 2000)).
After the case was remanded, Meyer moved for attorney’s
fees under the Act. The district court concluded that our
remand to the ALJ meant that Meyer prevailed in his action
against the Commissioner. See Shalala v. Schaefer, 509 U.S.
292, 300-02 (1993). The court held, however, that fees were
unwarranted because Meyer’s case was “one of those close
decisions about which reasonable persons could, and did,
disagree.” As a result, it could not be said that the
Commissioner had pursued a “substantially [un]justif[iable]”
position.
Meyer noted a timely appeal.3
II.
The Equal Access to Justice Act provides that:
3 After Meyer filed his motion for attorney’s fees, Carolyn
Colvin replaced Michael Astrue as acting Commissioner of Social
Security. For clarity, we continue to use masculine pronouns,
as it is the litigation position of Commissioner Astrue, not
acting Commissioner Colvin, that is at issue in this case.

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[A] court shall award to a prevailing party[,] other
than the United States[,] fees and other expenses
. . . incurred by that party in any civil action . . .
against the United States . . . 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) (emphasis added).
The Act does not define the term “substantially justified.”
The Supreme Court has recognized, however, that the substantial-
justification test is one of “reasonableness in law and fact.”
Pierce v. Underwood, 487 U.S. 552, 564-65 (1988). That is,
“[t]he Government’s position is substantially justified if it is
. . . ‘justified to a degree that could satisfy a reasonable
person.’” Cody v. Caterisano, 631 F.3d 136, 141 (4th Cir. 2011)
(quoting Pierce, 487 U.S. at 565). Of course, the Government
need not prevail in an action for its position to have been
substantially justified. Rather, the Government will avoid
paying fees as long as “a reasonable person could [have
thought]” that its litigation position was “correct.” Pierce,
487 U.S. at 566 n.2.
“[In] determining whether the [G]overnment’s position in a
case is substantially justified, we look beyond the issue on
which the petitioner prevailed to determine, from the totality
of the circumstances, whether the [G]overnment acted reasonably
in causing the litigation or in taking a [particular] stance

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during the litigation.” Roanoke River Basin Ass’n v. Hudson,
991 F.2d 132, 139 (4th Cir. 1993).
In doing so, it is appropriate to consider the
reasonable overall objectives of the [G]overnment and
the extent to which the alleged governmental
misconduct departed from them. . . . Although an
unreasonable stance taken on a single issue may . . .
undermine the substantial justification of the
[G]overnment’s position, that question can be answered
only by looking to the stance’s effect on the entire
civil action. [Thus,] while a party may become a
“prevailing party” on a single substantive issue
. . . , it does not automatically follow that the
[G]overnment’s position in the case as a whole is not
substantially justified.
Id.
The Government bears the burden of proving substantial
justification in the first instance. Crawford v. Sullivan, 935
F.2d 655, 658 (4th Cir. 1991). Once the district court has
determined the propriety of a fee, we review its decision for an
abuse of discretion. Hyatt v. Barnhart, 315 F.3d 239, 245 (4th
Cir. 2002).
III.
A.
Meyer does not contend that each and every one of the
Commissioner’s positions lacked a substantial justification.
See Appellant’s Br. 13; Reply Br. 1. On the contrary, he
concedes that the Commissioner reasonably argued that Social
Security regulations do not require the Appeals Council to

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articulate its rationale for denying an applicant’s request for
review. See Appellant’s Br. 13; Reply Br. 1. This concession
seems inevitable since the Commissioner prevailed on this issue.
See Meyer, 662 F.3d at 706.4
What Meyer contends is that the Commissioner unreasonably
maintained that “substantial evidence” supported the
Commissioner’s decision. See Appellant’s Br. 13–16. In
particular, Meyer argues that the Commissioner acted
unreasonably in asserting that Dr. Bailey’s letter did not
require reversal or remand to the ALJ. Id. at 13–15. Meyer
contends that, because Dr. Bailey was his treating physician,
the doctor’s recommendation should have received significant, if
not controlling, weight. See 20 C.F.R. § 404.1527(c)(2). In
addition, Meyer argues that the Commissioner erred in defending
the ALJ’s failure to address his treatment schedule. See
Appellant’s Br. 16. According to Meyer, the fact that he would
miss so much work to attend his various appointments tended to
show that he was unfit for full-time employment. To comply with
the substantial-evidence standard, Meyer asserts, the ALJ should
have considered this issue. See Universal Camera Corp. v. Nat’l
4 Meyer has also conceded that the Commissioner’s position
throughout the administrative proceedings was reasonable. See
United States v. 515 Granby, LLC, 736 F.3d 309, 315 (4th Cir.
2013) (holding that the Government’s pre-litigation position is
relevant to the attorney’s fees analysis).

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Labor Relations Bd., 340 U.S. 474, 488 (1951) (“The
substantiality of evidence must take into account whatever in
the record fairly detracts from its weight.”).
We disagree. First, it is difficult to conclude that the
Commissioner’s litigation position was not substantially
justified when Meyer himself concedes that the Commissioner was
correct with respect to one of the case’s two issues. The
Appeals Council’s obligation to explain its rationale was an
important issue that had divided lower courts before we resolved
the matter in Meyer’s appeal. Compare Jackson v. Barnhart, 368
F. Supp. 2d 504, 508 n.2 (D.S.C. 2005) with Harmon v. Apfel, 103
F. Supp. 2d 869, 873 (D.S.C. 2000). In determining whether the
Commissioner advanced a reasonable litigation position, we must
consider the case as a whole, see Roanoke River Basin, 991 F.2d
at 139, and here, the Commissioner was right on one of two
important issues.
Even as to the substantial-evidence issue, the matter
before us was hardly clear-cut. The Commissioner argued that
Dr. Bailey’s letter was of limited utility because Dr. Bailey
had not treated Meyer recently, and in any event, the
information he provided was duplicative of Dr. Weissglass’s
findings. We believe that a reasonable person could have
thought that this argument would prevail. Both Social Security
regulations and our case law establish that a treating

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physician’s opinion is to be accorded comparatively less weight
if it is based on the physician’s limited knowledge of the
applicant’s condition or conflicts with the weight of the
evidence. Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996); 20
C.F.R. § 404.1527(c). Dr. Bailey’s letter falls into both of
these categories.
Finally, with respect to the argument about Meyer’s
treatment schedule, we find nothing unreasonable about the
Commissioner’s position. Meyer himself acknowledged at oral
argument that he failed to raise the issue with specificity
before the ALJ. As the Eighth Circuit has noted, an ALJ “is not
obliged to investigate a claim not presented at the time of the
[benefits] application . . . and not offered at the hearing as a
basis for disability.” Halverson v. Astrue, 600 F.3d 922, 934
(8th Cir. 2010). Accordingly, the Commissioner did not act
unreasonably in defending the ALJ’s decision.
B.
Urging a contrary result, Meyer finds it significant that
the Commissioner changed his position regarding the import of
Dr. Bailey’s letter. Before the district court, the
Commissioner argued that the letter was not “new and material”
evidence entitled to consideration by the Appeals Council; but
on appeal, he conceded that the Appeals Council properly
considered the evidence. Given this change of position, Meyer

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argues that the Commissioner’s original defense cannot meet the
substantial-justification standard.
We are unpersuaded. To be sure, the Commissioner initially
staked out a curious position. In asserting that Dr. Bailey’s
letter did not qualify as “new and material” evidence, the
Commissioner implicitly argued that the Appeals Council erred in
considering the letter. See 20 C.F.R. § 404.970(b) (permitting
the Appeals Council to consider “new and material” evidence
submitted for the first time on appeal). But to show that
substantial evidence supported the Commissioner’s decision, it
sufficed for the Commissioner simply to show that the letter,
though material to Meyer’s application, did not impugn the
integrity of the Commissioner’s decision. See Universal Camera,
340 U.S. at 477 (defining “substantial evidence” as “such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion”). In other words, it would have been
easier for the Commissioner to concede that the letter contained
“new and material” information, but to argue that this new
information was not significant enough to require reversal of
the Commissioner’s decision. We note that this was precisely
the argument the Commissioner made before us on appeal.
Despite the oddity of the Commissioner’s original position,
his misstep does not merit a fee award. For the Commissioner’s
change of position did not alter the core of his argument. At

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every stage, in every brief, the Commissioner argued that Dr.
Bailey’s letter was of limited utility given that the doctor
last examined Meyer years before his letter and his findings
were duplicative of those of Dr. Weissglass. This position was
a reasonable one, and any errors the Commissioner made in
articulating it are not significant for purposes of a fee award
under the Act. See Roanoke River Basin, 991 F.2d at 139
(holding that in determining whether the Government’s position
was substantially justified “it is appropriate to consider the
reasonable overall objectives of the [G]overnment and the extent
to which the alleged governmental misconduct departed from
them”).
IV.
For all of these reasons, the judgment of the district
court is
AFFIRMED.

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