Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That They Are Not Precedent and Generally Should Not Be Cited Unless Relevant to Establishing the Doctrines of Res Judicata, Collateral Estoppel, the Law of the Case, or if the Opinion Has Persuasive Value on a Material Issue and No Published Opinion Would Serve As Well.jerry L. Pope, Appellant, v. Louis W. Sullivan, M.d., Secretary of Health and Humanservices of the United States, Appellee, 963 F.2d 376 (8th Cir. 1992)

Jerry L. Pope appeals from the District Court's¹  order denying him attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (1988), after the Secretary awarded him disability and supplemental security benefits following remand from this court in Pope v. Bowen, 886 F.2d 1038 (8th Cir. 1989). We affirm.

This court concluded previously that the Secretary committed reversible error when he failed to recognize explicitly the shift in burden after concluding Pope could not return to his past relevant work. Id. at 1040-41. The court did not determine, however, that there was substantial evidence on the record as a whole to award benefits. On remand, with the benefit of additional medical evidence to support a finding of disability and to justify admitting testimony of a vocational expert, the Secretary found Pope disabled.

The Secretary's position can be substantially justified even if the denial is unsupported by substantial evidence on the record as a whole. See Brouwers v. Bowen, 823 F.2d 273, 275 (8th Cir. 1987) (per curiam). On the basis of the evidence presented at the first hearing, we conclude that the Secretary's initial decision to deny benefits was substantially justified. Thus, the District Court did not abuse its discretion in denying the fee request. See Jackson v. Bowen, 807 F.2d 127, 128 (8th Cir. 1986) (per curiam).

Accordingly, we affirm.