                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 22 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



THOMAS J. MORRIS, III,                           No. 09-17099

              Plaintiff - Appellant,             D.C. No. 2:06-cv-02312-FJM

  v.
                                                 MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security Administration,

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Arizona
                   Frederick J. Martone, District Judge, Presiding

                      Argued and Submitted October 8, 2010
                            San Francisco, California

Before: HUG, RYMER and N.R. SMITH, Circuit Judges.




       Thomas J. Morris III appeals the district court’s decision denying him

attorneys’ fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412.

Morris claims the Social Security Administration (Commissioner) was not


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
substantially justified in defending the administrative law judge’s (ALJ) procedural

error.1 We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the

district court.

       The district court did not abuse its discretion in denying attorneys’ fees, even

though in Morris v. Astrue, 323 F. App’x. 584 (9th Cir. 2009), we reversed the

district court and the ALJ and awarded Morris disability benefits. In reversing and

awarding and award of benefits, we individually analyzed and rejected each of the

five sentences in the ALJ’s decision that addressed Morris’s credibility. Id. at 585-

586. We concluded “none of the ALJ’s proffered reasons for discrediting Morris’s

testimony stands up to scrutiny. . . . [Thus, the ALJ had] no basis on which to

reject Morris’s disability claim if she had credited his testimony.” Id. at 586.

       Though we reversed the district court and the ALJ on Morris’s disability

benefits, we are not firmly convinced that the district court’s decision regarding

attorneys’ fees “lies beyond the pale of reasonable justification under the

circumstances.” See Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000).

Unlike the court in Shafer v. Astrue, 518 F.3d 1067 (9th Cir. 2008), we did not


       1
             Under the EAJA, the district court must award attorneys fees to the
prevailing party, unless it concludes the government’s position opposing the appeal
of an ALJ’s finding was “substantially justified.” 28 U.S.C. § 2412(d)(1)(A);
“Substantially justified” means the defense must have a “reasonable basis in law
and fact.” Pierce v. Underwood, 487 U.S. 552, 565 (1988).

                                           2
have to speculate on the ALJ’s reasons, based on the record, for rejecting Morris’s

testimony. The ALJ provided enough of a record for the appellate courts to review

her decision, which ultimately led to an award of benefits to Morris rather than a

remand for further findings.

       Further, the record contains evidence on which the district court could

rationally have based its holding that the Commissioner had a reasonable basis in

law and fact to defend the ALJ’s decision. See Kali v. Bowen, 854 F.2d 329, 331

(9th Cir. 1988). Although we disagreed with the district court regarding the award

of benefits, the district court correctly notes that the reasons given by the ALJ are

at least rationally related to previous case law in this circuit.

       AFFIRMED.




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