FILED
NOT FOR PUBLICATION
NOV 09 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARRITA TRUJILLO, No. 14-35895
Plaintiff-Appellant, D.C. No. 3:13-CV-00620-SI
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Court Judge, Presiding
Submitted November 7, 2017**
Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.
Marrita Trujillo appeals the district court’s order denying her motion for
attorneys’ fees under the Equal Access to Justice Act (“EAJA”) in her action for
judicial review of the Commissioner of Social Security’s denial of her application
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
for disability insurance benefits under Title II of the Social Security Act, which the
district court reversed and remanded for further proceedings. We have jurisdiction
under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), and we affirm.
We review the district court’s order denying a motion for attorneys’ fees
under the EAJA for an abuse of discretion. Decker v. Berryhill, 856 F.3d 659, 663
(9th Cir. 2017). A district court “abuses its discretion when it fails to apply the
correct legal rule or its application of the correct legal rule is illogical, implausible
or without support in inferences that may be drawn from the facts in the record.”
Id.
The EAJA provides that “a court shall award to a prevailing party other than
the United States fees . . . incurred by that party in any civil action . . . brought by
or against the United States . . . unless the court finds that the position of the
United States was substantially justified.” 28 U.S.C. § 2412(d)(1)(A). The
government bears the burden of demonstrating that both its litigation position and
its position in the agency action underlying the litigation were substantially
justified. Decker, 856 F.3d at 664; Gardner v. Berryhill, 856 F.3d 652, 656 (9th
Cir. 2017). Substantial justification means “justified to a degree that could satisfy a
reasonable person,” Gardner, 856 F.3d at 656, and includes situations in which
“reasonable people could differ as to the appropriateness of the contested action,
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Pierce v. Underwood, 487 U.S. 552, 565 (1988). To be substantially justified, the
government’s position must have a “reasonable basis both in law and in fact.”
Decker, 856 F.3d at 664.
In ruling on Trujillo’s motion for attorneys’ fees, the district court did not
abuse its discretion in finding the agency decision in this case was substantially
justified. Although Trujillo argues that the DOT’s inclusion of the language “one-
or two-step instructions” in the definition of Reasoning Level One meant the ALJ
was required to find the DOT and the vocational expert’s testimony that Trujillo
could perform Reasoning Level 2 jobs conflicted, that conclusion was not
inevitable. As the district court noted, the DOT reasoning levels do not necessarily
correspond with the functional limitations as defined by the Social Security
Administration, and no binding precedent existed on this issue at the time the ALJ
rendered the decision on Trujillo’s application for benefits. In addition, district
court opinions differing as to whether this phrase is inconsistent with DOT’s Level
Two Reasoning parameters illustrate that the conflict was not necessarily apparent.
Compare, e.g., Murray v. Colvin, No. C-13-01182 DMR, 2014 WL 1396408, at
*10 (N.D. Cal. Apr. 10, 2014) (finding no conflict) with Chase v. Colvin, No.
06:12-cv-01857-HZ, 2013 WL 5567082, at *4-5 (D. Or. Oct. 9, 2013) (finding
conflict exists). Because a reasonable person could have concluded that the ALJ
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did not err in finding the vocational expert’s testimony and the DOT did not
conflict, the district court did not abuse its discretion when it concluded that the
underlying agency action was substantially justified. See Gardner, 856 F.3d at 656;
Pierce, 487 U.S. at 565.
The district court also did not abuse its discretion in finding that the
government’s litigation position was substantially justified. Although finding an
agency action was not supported by substantial evidence can serve as a “strong
indication” that the government’s position was not substantially justified, “success
on the merits is not dispositive of an EAJA application.” Decker, 856 F.3d at 664.
Furthermore, the “existence of precedents construing similar statutes or similar
facts” is an important factor in determining whether the government’s litigation
position was substantially justified. Kali v. Bowen, 854 F.2d 329, 332 (9th Cir.
1988) (citing Pierce, 487 U.S. at 566). In this case, in concluding the government’s
litigation position was substantially justified, the district court properly relied upon
the lack of controlling precedent and the inconsistency of district court decisions
concerning whether an RFC limitation to one- or two-step instructions and DOT
Reasoning Level Two conflict. See id.; Decker, 856 F.3d at 665. Because the
district court did not apply the incorrect legal standard or apply the correct standard
4
in an illogical way, the district court did not abuse its discretion. Decker, 856 F.3d
at 663; Kali, 854 F.2d at 334.
AFFIRMED.
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