Marrita Trujillo v. Nancy Berryhill , 700 F. App'x 764 ( 2017 )


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  •                                                                             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    NOT FOR PUBLICATION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,
    2
    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
    3
    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.
    5
    

Document Info

Docket Number: 14-35895

Citation Numbers: 700 F. App'x 764

Filed Date: 11/9/2017

Precedential Status: Non-Precedential

Modified Date: 1/13/2023