NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
AUG 25 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KATHLEEN ALLEN-HOWARD, No. 13-35275
Plaintiff - Appellant, D.C. No. 3:11-cv-01116-RE
v.
MEMORANDUM*
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
James A. Redden, Senior District Judge, Presiding
Submitted July 9, 2015**
Portland, Oregon
Before: PREGERSON, N.R. SMITH, and OWENS, Circuit Judges.
Kathleen Allen-Howard appeals the district court’s order denying her motion
for attorney’s fees made pursuant to the Equal Access to Justice Act (“EAJA”).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We review “the district court’s denial of attorney’s fees under EAJA for an abuse
of discretion.” Meier v. Colvin, 727 F.3d 867, 869 (9th Cir. 2013). We affirm.
“[A] court shall award to a prevailing party other than the United States fees
. . . incurred by that party in any civil action . . . 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). The “‘position
of the United States’ means, in addition to the position taken by the United States
in the civil action, the action or failure to act by the agency upon which the civil
action is based.” Id. § 2412(d)(2)(D). In determining whether the position of the
United States was substantially justified, we “focus on two questions: first, whether
the government was substantially justified in taking its original action; and, second,
whether the government was substantially justified in defending the validity of the
action in court.” Gutierrez v. Barnhart, 274 F.3d 1255, 1259 (9th Cir. 2001)
(quoting Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988)) (internal quotation
marks omitted). The United States bears the burden of demonstrating that its
position was substantially justified, meaning “the government’s position must have
a ‘reasonable basis both in law and fact.’” Meier, 727 F.3d at 870 (quoting Pierce
v. Underwood, 487 U.S. 552, 565 (1988)).
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In order to determine whether the Commissioner’s position was substantially
justified, we must look to the Administrative Law Judge’s (“ALJ”) initial decision
to deny Allen-Howard social security benefits. Meier, 727 F.3d at 870 (“In the
social security context, we have consistently treated the ALJ’s decision as the
‘action or failure to act by the agency upon which the civil action is based.’”). The
ALJ denied Allen-Howard benefits without determining whether Allen-Howard’s
residual functional capacity (“RFC”) for “1 to 2 step tasks” conflicted with
Reasoning Levels 2 and 3 in the Dictionary of Occupational Titles (“DOT”). The
Commissioner argued before the district court that there was not an apparent
conflict. The district court disagreed, but declined to award attorney’s fees after
finding that the Commissioner’s position was substantially justified.
In Rounds v. Commissioner of Social Security, No. 13-5505 (9th Cir. August
4, 2015), we recently determined that an RFC for “1 to 2 step tasks” is in apparent
conflict with Reasoning Level 2. Nevertheless, the ALJ’s decision was
substantially justified, because we had not determined whether an RFC for “1 to 2
step tasks” is in apparent conflict with Reasoning Level 2 at the time the ALJ made
its decision. If there were not an apparent conflict, the ALJ was entitled to rely on
the testimony of the Vocational Expert (“VE”) regarding the jobs Allen-Howard
could perform in the national economy. See Massachi v. Astrue, 486 F.3d 1149,
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1152–53 (9th Cir. 2007). The district courts of this circuit have split on this
question, and there was no controlling authority to guide the ALJ. See Meissl v.
Barnhart, 403 F. Supp. 2d 981 (C.D. Cal. 2005); Skeens v. Astrue, 903 F. Supp. 2d
1200 (W.D. Wash. 2012). It was not clear at the time the ALJ made its decision
that Allen-Howard’s RFC, for “1 to 2 step tasks,” was inconsistent with Reasoning
Level 2. Therefore, there was a reasonable basis in law and fact to support the
ALJ’s decision not to recognize an apparent conflict between the VE’s testimony
regarding what jobs a claimant with Allen-Howard’s RFC could perform and the
DOT.
The Commissioner’s litigation position in the district court was also
substantially justified. As noted, there was no controlling authority on the question
raised in Allen-Howard’s appeal at the time the Commissioner filed its briefing.
This is not a case like Gutierrez, where the government’s position on an open
question was contrary to the clear and unequivocal language of a regulation. See
Gutierrez, 274 F.3d at 1262. Allen-Howard’s case involved “contested
interpretations of an ambiguous legal rule.” Id. Therefore, the Commissioner’s
litigation position was substantially justified.
AFFIRMED.
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