                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-1775
                                   ___________

Christine C. Conklin,                   *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Southern District of Iowa.
Michael J. Astrue, Commissioner         *
of Social Security Administration,      * [UNPUBLISHED]
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: November 13, 2007
                                Filed: June 19, 2008
                                 ___________

Before WOLLMAN, JOHN R. GIBSON, and BENTON, Circuit Judges.
                          ___________

PER CURIAM.

       Following our remand for further proceedings in Christine C. Conklin’s appeal
from the district court’s judgment affirming the denial of her application for social
security benefits, Conklin v. Barnhart, 206 Fed. Appx. 633 (8th Cir. 2006), Conklin’s
counsel filed an application for attorneys fees and costs under the Equal Access to
Justice Act (EAJA), 28 U.S.C. § 2412(d).
      It is from the district court’s1 order denying that application on the ground that
the government’s position was substantially justified that Conklin now appeals. We
affirm.

        Our reversal of the denial of benefits was grounded on our conclusion that the
administrative law judge (ALJ) had failed to include in the hypothetical question that
he posed to the vocational expert the uncontradicted assessment by Conklin’s treating
physician regarding Conklin’s inability to engage in repetitive bending or climbing.
In all other respects, we found no fault in the ALJ’s assessment and treatment of the
evidence or in the position taken by the government in support of its resistence to the
claim for benefits.

      We review for abuse of discretion the district court’s determination whether the
government’s position was substantially justified. See, e.g., Pierce v. Underwood, 487
U.S. 552, 565 (1988); Lauer v. Barnhart, 321 F.3d 762, 764 (2003); Herman v.
Schwent, 177 F.3d 1063, 1065 (8th Cir. 1999).

        It is the government’s burden to prove that its position was substantially
justified. Herman, 177 F.3d at 1065. It can accomplish this by showing that the
position was “justified in substance or in the main– that is, justified to a degree that
could satisfy a reasonable person.” Pierce, 487 U.S. at 565 (internal quotation
omitted). To warrant such a characterization, the position must have “reasonable basis
both in law and fact.” Id. See also, Herman, 177 F.3d at 1065.

      We conclude that the district court did not abuse its discretion in finding that,
when viewed in the light of the foregoing standard, the government’s position was
substantially justified. In so holding, we note that, unlike the situation that existed in


      1
        The Honorable Charles R. Wolle, United States District Judge for the Southern
District of Iowa.

                                           -2-
Lauer, there was some medical evidence in this case in support of the government’s
argument that Conklin’s physical limitations and the extent of her pain were not so
severe as she claimed. Unlike Gowen v. Bowen, 855 F.2d 613 (8th Cir. 1988), this
is not a case in which the government disregarded overwhelming evidence in support
of the claim for benefits. That we ultimately held that the ALJ was incorrect in not
taking the treating physician’s assessment into account when formulating the
hypothetical question does not necessarily mean that the government’s position to the
contrary was unreasonable in light of the entirety of the evidence in the record. See
Pierce, 487 U.S. at 566 n.2.

      The order is affirmed.
                       ______________________________




                                         -3-
