Heather Rounds v. Nancy Berryhill , 697 F. App'x 511 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 7 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HEATHER ROUNDS, No. 16-35588
Plaintiff-Appellant, D.C. No. 3:12-cv-00342-MA
v.
MEMORANDUM*
NANCY A. BERRYHILL,
Acting Commissioner of Social Security
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, District Judge, Presiding
Submitted April 11, 2017**
Before: W. FLETCHER and HURWITZ, Circuit Judges, and BAYLSON,***
District Judge.
We previously affirmed in part and vacated in part the decision of an
*
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. Fed. R. App. P. 34(a)(2).
***
The Honorable Michael M. Baylson, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
Administrative Law Judge (“ALJ”) denying Heather Rounds’s application for
Supplemental Security Income benefits, and remanded for the ALJ to resolve an
apparent conflict between the testimony of a vocational expert (“VE”) and the
Dictionary of Occupational Titles (“DOT”). Rounds v. Comm’r of Soc. Sec., 807
F.3d 996, 999 (9th Cir. 2015). On remand, Rounds applied for attorneys’ fees under
the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A). The district
court denied the fee application, and this appeal followed.
Fees are not available under the EAJA if the Commissioner’s position was
“substantially justified.” Id. “Substantially justified” means “justified in substance
or in the main—that is, justified to a degree that could satisfy a reasonable person.”
Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal quotation marks omitted).
“Thus we must 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) (internal
quotation marks and citations omitted).
We review a district court’s denial of fees under the EAJA for abuse of
discretion. Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir. 1998). The district court
did not abuse its discretion in concluding that the Commissioner’s position was
substantially justified both before the ALJ and during the subsequent litigation.
2
Prior to Zavalin v. Colvin, 778 F.3d 842 (9th Cir. 2015), district courts in our circuit
were divided as to whether the ALJ was required to reconcile conflicts between the
VE’s testimony and one of the DOT GED Reasoning Level 3 at Step Five of the
five-step sequential evaluation process. See id. at 846-47 (“District courts in our
circuit that have confronted this issue are also divided.”). Therefore, the
Commissioner’s position before the ALJ in this case, which involved an analogous
situation of conflicts between a VE’s testimony and DOT’s GED Reasoning Level
2 at Step Five, was not unreasonable under then-existing law. See Rounds, 807 F.3d
at 1002-04. And, because Zavalin was not issued until after the briefing on appeal
in this case closed, the Commissioner’s litigation position was also not unreasonable.
AFFIRMED.
3