Dennis Frost v. MICHAEL J. ASTRUE, Commissioner of Social Security

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 3, 2010
Decided March 16, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
DANIEL A. MANION, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 09-3606
DENNIS FROST,
Plaintiff-Appellant,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United
States District Court for the
Central District of Illinois.
No. 08-2106
David G. Bernthal, Magistrate
Judge.
Order
An administrative law judge turned down Dennis Frost’s application for disability
benefits. A magistrate judge, presiding by consent, see 28 U.S.C. §636(c), concluded that
the ALJ’s decision was too sketchy to allow judicial review. Although the magistrate
judge thought that substantial evidence supports the ALJ’s credibility findings, he be-
lieved that the ALJ’s decision did not contain enough discussion of Frost’s mental-health
records to convey the ALJ’s reasons for preferring one interpretation of those records
over another, and particularly for disagreeing with Dr. Howard Levine’s evaluation of
Frost’s condition. The magistrate judge remarked: “Some evidence in these records
would support the ALJ’s conclusion that [Frost’s] mental health was improving, but
other evidence suggests the opposite.” The magistrate judge remanded for a better ex-
planation under sentence 4 of 42 U.S.C. §405(g). 2009 U.S. Dist. LEXIS 52473 (C.D. Ill.
June 22, 2009).
Frost then applied for attorneys’ fees, which the Equal Access to Justice Act makes
available “unless the court finds that the position of the United States was substantially
justified.” 28 U.S.C. §2412(d)(1)(A). As Frost saw matters, a disability benefits decision
that is substantially justified must be affirmed; since this one was vacated and re-
manded, the government’s position cannot have been substantially justified. The magis-
trate judge saw things differently. He noted that the ALJ’s credibility finding had been

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No. 09-3606 Page 2
sustained, and that the remand reflected shortcomings in the ALJ’s opinion rather than
any conclusion that Frost is entitled to benefits—let alone so clearly entitled to disability
benefits that any contrary litigating position could not be substantially justified.
Frost’s appeal repeats his contention that the reasons supporting the remand under
§405 necessarily show that the Commissioner’s position was not substantially justified.
We rejected a similar contention in United States v. Thouvenot, Wade & Moerschen, Inc.,
No. 09-2421 (7th Cir. Feb. 18, 2010). That opinion covered three consolidated appeals.
The third, Park v. Astrue, was in the same posture as Frost’s. Park applied for disability
benefits; an ALJ denied the application; a judge remanded under §405 after concluding
that the ALJ had not adequately explained his conclusions; the same judge then denied a
motion for attorneys’ fees under the EAJA. We held that a remand does not necessarily
entitle the claimant to attorneys’ fees; to the contrary, we stated, when the same judge
who remanded a case concludes that the agency’s position nonetheless was substan-
tially justified, “that decision is entitled to substantial weight” on appeal. Thouvenot, slip
op. 18.
Only if the district court abused its discretion may we reverse a decision to deny (or
grant) a motion for fees under the EAJA. Pierce v. Underwood, 487 U.S. 552, 559-63
(1988). That deferential standard, combined with the “substantial weight” to which the
judge’s decision is entitled, leads to affirmance. Insufficient explanation by an ALJ differs
from lack of substantial justification for a denial of benefits. For all we can tell, benefits
may again be denied on remand, and that decision may be sustained on judicial review;
Frost’s victory may be short lived. We recognize that the remand is a victory that can in
principle support an award of fees, see Shalala v. Schaefer, 509 U.S. 292, 300–02 (1993). But
nothing about this remand, in particular, implies the absence of substantial justification.
Many a justified position is poorly explained; the magistrate judge thought that this is
the right way to understand the ALJ’s decision on Frost’s claim.
“Substantially justified” does not mean “right”; that’s one holding of Underwood. The
EAJA differs from 42 U.S.C. §1988(b) and many similar statutes because it does not re-
quire an award to every prevailing party. Trying to figure how grave an error is re-
quired before the government’s defense of its position lacks “substantial justification” is
a difficult exercise in line-drawing, as the Supreme Court concluded in Underwood. The
magistrate judge did not abuse his discretion in placing this case on the “substantially
justified, if unsuccessful” side of that line.
AFFIRMED

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