Tremayne v. Commissioner of Social Security Administration , 486 F. App'x 694 ( 2012 )

FILED
NOT FOR PUBLICATION NOV 09 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBYN TREMAYNE, No. 11-15831
Plaintiff - Appellant, D.C. No. 2:08-cv-02795-EFB
v.
MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Edmund F. Brennan, Magistrate Judge, Presiding
Submitted November 7, 2012 **
San Francisco, California
Before: GOULD and M. SMITH, Circuit Judges, and DUFFY, District Judge.***
*
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).
***
The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
Appellant Robyn Tremayne appeals the district court’s denial of her motion
for attorney fees, brought under the Equal Access to Justice Act (EAJA), 28 U.S.C.
§ 2412(d). As the facts and procedural history are familiar to the parties, we do not
recite them here except as necessary to explain our disposition. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Under the EAJA, the prevailing party in a suit against the government is
entitled to attorneys’ fees unless the court finds that the government’s position was
“substantially justified.” Le v. Astrue, 529 F.3d 1200, 1201 (9th Cir. 2008).
Substantial justification “does not mean ‘justified to a high degree,’ but simply
entails that the government must show that its position meets the traditional
reasonableness standard—that is, ‘justified . . . to a degree that could satisfy a
reasonable person.’” Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir. 1998)
(quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). A position can be
substantially justified “even though it is not correct . . . if it has a reasonable basis
in law and fact.” Pierce, 487 U.S. at 566 n.2.
The district court did not abuse its discretion in determining that the
Commissioner was substantially justified in defending the findings of the
administrative law judge (ALJ) regarding Tremayne’s examining physician. There
was a reasonable basis for believing that the physician’s assessment, which relied
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in part on Tremayne’s subjective complaints, could be rejected for lack of
credibility. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); see also
Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004);
Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602–03 (9th Cir. 1999).
Additionally, the Commissioner was substantially justified in positing that
the ALJ was not required to incorporate the findings of moderate mental
limitations into the hypothetical posed to the vocational expert because this
position is reasonably supported by Stubbs-Danielson v. Astrue, 539 F.3d 1169,
1173–74 (9th Cir. 2008). See also Hoopai v. Astrue, 499 F.3d 1071, 1077–78 (9th
Cir. 2007).
AFFIRMED.
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